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49 posts from April 2017


New Book: Thomas West, "The Political Theory of the American Founding"
Michael Ramsey

Recently published: Thomas G. West (Hillsdale College), The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom (Cambridge Univ. Press 2017).  Here is the book description from Amazon: 

This book provides a complete overview of the American Founders' political theory, covering natural rights, natural law, state of nature, social compact, consent, and the policy implications of these ideas. The book is intended as a response to the current scholarly consensus, which holds that the Founders' political thought is best understood as an amalgam of liberalism, republicanism, and perhaps other traditions. West argues that, on the contrary, the foundational documents overwhelmingly point to natural rights as the lens through which all politics is understood. The book explores in depth how the Founders' supposedly republican policies on citizen character formation do not contradict but instead complement their liberal policies on property and economics. Additionally, the book shows how the Founders' embraced other traditions in their politics, such as common law and Protestantism.

Via Steven Hayward at Powerline, who adds:

First, West’s account is not just at another rich synthesis of the various intellectual traditions and currents that most historians attribute to American political thought, but instead makes a powerful case for the centrality of the idea of natural law and natural right above other ideas: “If I am correct, the founders embraced ‘other traditions’—common law. Protestantism, etc.—only to the extent they helped to ‘secure these [natural] rights.’”

Second, West directly and powerfully rejects the smug historicism typical of most accounts of the American founding today even by some authors who regard themselves as sympathetic to the founding. Historicism assumes our current opinions, even consciousness itself depending on how far out you travel on the historicist spectrum, are limited by our own historical horizons. For people trapped in the prison of historicism, the “truth” of the founders may have been true for their time, but our times and ideas are—and must be—different. (This is the root of that laziest of liberal tropes about “the side of history.”) West believes (and I agree) that the achievement of the American founding was crystalizing the accumulated and hard-won political wisdom of two millennia of western civilization into a truly novus ordo seclorum—a new order for the ages, meaning an advance of human social order based on permanent principles of right. As George Washington wrote in 1783: “The foundation of our empire was not laid in the gloomy ages of ignorance and superstition; but at an epoch when the rights of mankind were better understood and more clearly defined, than at any other period.


Michael Perry: Human Rights, Democracy, and Constitutionalism
Michael Ramsey

Michael J. Perry (Emory University School of Law) has posted A Global Political Morality: Human Rights, Democracy, and Constitutionalism on SSRN.  Here is the abstract: 

 This SSRN posting consists mainly of the introduction to my new book: A GLOBAL POLITICAL MORALITY: HUMAN RIGHTS, DEMOCRACY, AND CONSTITUTIONALISM (Cambridge University Press 2017). [ed.: The Amazon book page is here.] The “global political morality” to which the title refers is what I call “the morality of human rights”. In the book, as I explain more fully in the introduction, I pursue several related inquiries that lie at the interface of human rights theory, political theory, and constitutional theory.

The first two inquiries concern the morality of human rights: 1. What are “human rights”? 2. What reason (or reasons) do we have--if indeed we have any — to take human rights seriously?

The next two inquiries concern the relationship of the morality of human rights to democratic governance: 3. How does the morality of human rights support democratic governance? 4. How does the morality of human rights limit democratic governance? I address the latter question with particular reference to the human right to religious and moral freedom.

The final three inquiries concern the relationship of the morality of human rights to certain constitutionalism-related questions: 5. In the context of the Constitution of the United States, what theory of judicial review takes seriously both the human right to democratic governance and the other human rights that are limits on democratic governance? 6. What are the implications of that theory of judicial review — a theory that comprises a (limited) affirmation of an originalist understanding of constitutional "interpretation" — for the constitutional controversies over, respectively, capital punishment, race-based affirmative action, same-sex marriage, physician-assisted suicide, and abortion? 7. Should human rights of the socioeconomic sort, such as the human right to adequate healthcare, be constitutionalized — and if so, should they also be judicialized?

Note that points (5) and (6) in the abstract are of particular interest to originalist scholars.

Plus, at the Amazon page, strong endorsements from, among others, Richard Kay and Robin Bradley Kar.


Last Week's Decision in Nelson v. Colorado
Michael Ramsey

At Volokh Conspiracy, David Post on last week's Supreme Court decision in Nelson v. Colorado: Whose money is it?: Clarence Thomas and the due process clause.  As Professor Post explains:

Here’s the background, for those unfamiliar with the case: Colorado imposes court costs and various other fees on anyone convicted of a crime; those whose convictions are subsequently overturned can obtain a refund of those fees, but only through a special proceeding at which they have the burden of showing, by clear and convincing evidence, that they were innocent of the crime(s) with which they were charged.

The court held that this was a violation of the 14th Amendment’s due process clause — i.e., that this procedure deprives these individuals of property without due process of law. Why? Because it is their money; the state’s claim to the funds was based “sole[ly] on the fact of their criminal convictions,” and once the convictions are voided, Colorado has “no legal right to exact and retain petitioners’ funds.”

I entirely agree, as I wrote at the time the case was argued: Nelson v. Colorado and Some Tricky Aspects of an Easy Case.  Disappointingly, the Court majority used the Mathews v. Eldridge balancing test, an entirely nonoriginalist construct, to reach this conclusion.  It does not seem to me (as I wrote in my prior post) that any balancing is required.  There are traditional ways to deprive people of property consistent with the due process of law, and Colorado's is not one of them.

The Court's approach is, however, consistent with Justice Scalia's concurring opinion in Connecticut v. Doehr (1991), in which Scalia said, for procedures that were not known to the common law, constitutionality could be evaluated under Mathews (as a matter of precedent, I suppose).  In contrast, procedures accepted under the traditional common law, Scalia said in Doehr, should automatically be validated.  I have come to think Scalia's approach in Doehr (with which I had some incidental association) is wrong.  Mathews may well be appropriate for so-called "new" property (statutory entitlements, as in Mathews itself).  But for traditional property, doesn't the due process clause call for traditional procedures prior to deprivation?  If states (such as Colorado) invent some deprivations that fundamentally depart from traditional protections, why should their validity turn on how a modern court "balances" matters that are essentially policy assessments?  Instead, I would think an originalist would say that the due process clause locked in traditional common law protections for traditional property, and material departures are per se unconstitutional.

But then there's Justice Thomas' dissent.  I was surprised he dissented, given his usual strong impulse to protect property. As Professor Post explains, the Justice got worried about whose property it was: 

[Thomas] begins with the uncontroversial assertion that in order to prevail on their due process claim, the petitioners “must first point to a recognized property interest in that money, under state or federal law.” You can’t, in other words, be deprived of property without due process of law unless what you have been deprived of is actually your property and you can show some “substantive entitlement” to it.

Fair enough. But here, he goes on to say, the money that the petitioners seek is not “their money” at all; it’s Colorado’s money.  It used to be “their money”; but once it was “lawfully exacted pursuant to a valid conviction,” it became the state’s money. This, Thomas points out, is what the Colorado Supreme Court had held in the proceedings below, that “moneys lawfully exacted pursuant to a valid conviction become public funds” under state law.

Professor Post objects strongly, and I agree.  The key is that the money was not "lawfully exacted pursuant to a valid conviction"; it was exacted pursuant to a conviction that appeared valid at the time but was later invalidated.   Justice Thomas erred, in my view, in focusing only on the attempt to get the money back, and not on the exaction of the money in the first place.  It's true that if the money had been lawfully taken, his focus would have been the right one.  But the whole point of the case was (or should have been) whether the money was lawfully taken in the first place -- that is, whether due process allows the state to take property pursuant to a conviction that is later found to be invalid.  If the initial taking did not comport with due process, then it seems fairly clear that the state's lame post-deprivation remedy (allowing reimbursement only if the claimant could prove actual innocence) was insufficient.  Thomas got to his conclusion only by assuming that the initial deprivation was valid.  But that just seems wrong.  Under traditional common law principles, I assume that the government could not take property pursuant to an invalid conviction.  With the focus put that way, that's all that needs to be said to decide the case.


Historians and Originalists Part III: The Hard Case of Discovering the Original Meaning of the 14th Amendment
Mike Rappaport

In my last post, I want to discuss hard constitutional clauses – clauses where the original meaning of the constitutional provisions are extremely difficult to understand.  In these cases, one might expect that the skills of the professional historian would be the most valuable.  Yet, in the case of the 14th Amendment – in my view, the hardest part of the Constitution to understand its original meaning – recent discoveries have not primarily come from historians.  Instead, originalists have a made a large number of important advances in this area.  Thus, even in the hard areas, one cannot dismiss the methods of originalists, especially when conducted in the proper way.

Back in the 1980s before I became a law professor, I was first exposed to originalist interpretation of 14th Amendment.  At the time, I thought the Privileges or Immunities Clause probably incorporated the Bill of Rights; the Due Process Clause was simply procedural due process, and the Equal Protection Clause provided for equality generally.  Various people made these arguments and they seemed to make sense.

But then I remember reading through the congressional debates on the Amendment and having the toughest time.  Members of Congress seemed to be saying the most absurd things.  How could they be so confused?

Obviously, someone was confused but it wasn’t necessarily the members of Congress.  I had come to the debate with preconceived notions about the meaning of the Amendment and somehow the debate did not conform to my ideas.

But that was back in the 1980s when the rebirth of originalism was in its infancy.  Over time, as the movement and your author have matured, the obvious mistakes of that approach have been recognized.  In particular, the problem of assuming that we know the meaning of the clauses, when we know one plausible meaning of the words, is seen as a serious problem.  There may be many possible meanings (including legal meanings that do not conform to ordinary language understandings).

Originalists have made great progress in the last generation in appreciating the many possible meanings of the 14th Amendment.  Thus, they have come to understand that the Privileges or Immunities Clause might protect various fundamental common law rights in the states instead of (or in addition to) protecting the Bill of Right.  They also recognize that the Clause might be understood as either protecting substantive rights or protecting only against unequal treatment as to the rights.

Originalists have also recognized many additional possible meanings of the Due Process Clause.  In addition to the possibility that the Clause only protects “procedural due process,” it might protect certain vested rights and certain equality rights.  Other scholars have argued it protects natural rights.  Yet other scholars have argued that it has the narrow meaning by only applying to departures from existing law, but does not forbid the legislature from establishing whatever procedures it desires.

Finally, there is the Equal Protection Clause.  One significant advance is that the recognition that the Clause might not require equality as to all laws, but instead might identify a category of matters, “protection of the law, that involves remedial matters (such as protecting people from having the rights they enjoy under the law infringed).  Under this view of the Clause, the state has an obligation to provide to people this type of protection (but only this type) equally.

Clearly, then, originalists have uncovered a significant number of historically plausible meanings of the Amendment.  This number of possibilities has represented a great advance.  But it now places the burden on originalists to determine what is the correct meaning.  In my view, this will depend on considering a variety of factors, including the more common meaning and the underlying purposes of the provision.

One might have thought that these advances, in this very difficult area, would have been the result of historians who were more conversant with the historical usage of these terms and concepts.  But to my mind, it has not been primarily the result of historians.  Instead, originalist scholars have made significant progress, such as Akhil Amar, Jack Balkin, Randy Barnett, Steve Calabresi, Nathan Chapman, Chris Green, John Harrison, Kurt Lash, Mike McConnell, Melissa Saunders, Ryan Williams and others who I am no doubt forgetting.

In some cases, I am sure the originalist scholars have benefitted from the work of historians.  I know, for example, that one of these originalist scholars greatly learned from William Nelson’s book on the 14th Amendment, even though that scholar does not agree with Nelson’s read on the Amendment.  Instead, some of the material Nelson discussed and some arguments he made proved persuasive or useful, even though some of the remainder was problematic.  Of course, I am more familiar with the law review literature and I may be missing some important contributions by historians.  But overall, my strong sense is that these developments have been more the result of law professors than historians.

There is, of course, an important role for historians.  But even in the area where we have been most at sea, historians have not dominated the field.  Instead, it has been a joint effort of many scholars, some of whom are historians, but one where originalists have made, at least to my mind, the principal contributions as to the specific original meanings.

Two from Steven Calabresi
Michael Ramsey

In the mail, from Steven Calabresi (Northwestern):

(1) Steven G. Calabresi and Hannah M. Begley, Originalism and Same-Sex Marriage, 70 U. Miami L. Rev. 648 (2016).  Here is the abstract:

This article examines the original meaning of the equality guarantee in American constitutional law. It looks [at] the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Even if one doesn't accept the ultimate conclusion, the article's historical evidence on the focus by the Fourteenth Amendment's framers on prohibiting the idea of a caste system is impressive and important for analyzing multiple issues under the Amendment.

(2) Steven G. Calabresi, Annual B. Kenneth Simon Lecture: On Originalism and Liberty, 2015-2016 Cato S. Ct. Rev. 17 (2016).  From the introduction:

My talk is titled “Originalism and Liberty” because I am an originalist when it comes to constitutional interpretation and thus agree with the methodological approach of Justices Antonin Scalia and Clarence Thomas. I should mention at the outset that I clerked for former Justice Scalia, and I deeply admire him and am grateful to him because he was my mentor for 34 years. Nonetheless, in the 25 years since I left Washington, D.C., to teach law at Northwestern University, I have studied the history of the Constitution and of the Fourteenth Amendment and Magna Carta in great depth and have concluded that the original meaning of those documents is somewhat more libertarian than Justice Scalia, for example, realized. I want today to present briefly my reasons for reaching the conclusion that originalism means endorsing a presumption of liberty and not a presumption of constitutionality when courts decide the cases that are before them.1 In endorsing a presumption of liberty, I am agreeing with Randy Barnett’s book, Restoring the Lost Constitution: The Presumption of Liberty, even though I do not agree with everything Randy says in that book.

And also:

Before beginning my proof that originalism leads to a presumption of liberty, I need to explain what I think it means to be an originalist. I think originalism requires that when one interprets any legal text, whether it be the Constitution, a statute, a contract, or a Supreme Court precedent, one must give the words of the text one is interpreting their original public semantic meaning. This means consulting dictionaries, grammar books, and newspapers published at the time the legal text became law. I do not believe it is appropriate for judges to consult the original intent that animated the adoption of a clause but only the original semantic public meaning of the words of the text. Laws adopted by dead people bind us but their unenacted intentions do not. My view of originalism is thus the view expressed by Justice Scalia when he spoke at Catholic University in the fall of 1996. In that speech, he said:

The theory of originalism treats a constitution like a statute, giving the constitution the meaning that its words were understood to bear at the time they were promulgated. You will sometimes hear it described as the theory of original intent. You will never hear me refer to original intent, because I am first of all a textualist and secondly an originalist. If you are a textualist, you don’t care about the intent, and I don’t care if the Framers of the U.S. Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words. . . . The words are the law. I think that’s what is meant by a government of laws, not of men. We are bound not by the  intent of our legislators, but by the laws which they enacted, laws which are set forth in words, of course.

My task in this essay is to explain what I think was the original semantic public meaning of several words and clauses that appear in the text of the Constitution, the Bill of Rights, and the Fourteenth Amendment, which I think should lead to a presumption of liberty.


Historians and Originalists Part II: The Adequacy of Originalist Scholarship
Mike Rappaport

In a prior post, I discussed some of the disagreements between historians and originalists.  I argued that more information is generally better than less information and therefore both groups of scholars are likely to make contributions as to constitutional interpretation.  Here I want to examine the relative contributions of the two groups and in particular whether the standard methods used by originalists are adequate to the task.

Jonathan Gienapp argues that, without the skills of the historian, originalist law professors will not be able to determine the original meaning of constitutional language, because the language games and other aspects of 18th Century language will be unknown to them.  Now certainly this is an overstatement.  Much of the language of the 18th century is pretty accessible to modern Americans, even if some parts are not (and even if we do not know which parts we are mistaken about).  Obviously, this includes clear language such as each state enjoying equal voting rights in the Senate.  But it also includes less clear language, such as the Confrontation Clause (which allows the accused the right “to be confronted with the witnesses against him), where we know some of what it means, even if we don’t know the details without further research.

The knowledge of ordinary historians will be even less useful to the extent one believes as I do that much of the Constitution is written in legal language.  If that is the case, then the legal historian may have significant advantages, but other types of historians may miss the legal meanings and the legal methods that lawyers at the time employed to discover that legal meaning.

But none of this should be understood to deny the importance of historians generally and the possibility that their “knowing how” knowledge can help to discover useful information.  Still the key question is whether the methods of law professor originalists are adequate to discovering the original meaning of provisions.

In part, this depends on the information that is required to determine the original meaning.  For original methods originalism, the type of originalism to which I subscribe, one needs to know a variety of pieces of information.  Here let me mention the most important pieces.  First, one needs to know the meaning of the words, including both the ordinary and legal meaning of the terms.  One also needs to know the interpretive rules that were employed, both in ordinary language and in legal language.  Further, one needs to know the purposes of provisions (understood as lawyers at the time would have), and therefore reference to the values of the people at the time will be relevant.  Finally, one needs to know the legal history of institutions.

The typical law professor originalist article, when done well, looks at the provision at issue; the discussion of the provision from the drafting and ratification conventions; precursors to the provision in the states, in the colonies, under English law; and early interpretations of the provision by the Congress and the courts.  In addition, one typically looks at dictionary meanings – both ordinary and legal dictionaries – and usages in other documents of the relevant words.  This may represent a small or large amount of materials, depending on the clause.

What is significant about this type of research is that it will show how people at the time interpreted the provision, including the meaning of words, and the values they appealed to.  It will also show a good deal of information about the words generally and precursor provisions. This can often be a tremendous amount of information.  Since it will often involve specific discussion of particular provisions, it is easier to interpret than more general language which may have different meanings in different contexts.

I don’t want to argue that this information is all one needs, but it will often provide very powerful evidence.  For example, this type of information as to the Recess Appointments Clause provided strong evidence that it had the narrow meaning I argued for and that Justice Scalia defended in his concurrence in the Noel Canning case.  In fact, the people who argued for the broad meaning did not really with conviction contend that it had the broader original meaning.  Instead, they simply claimed that the language was ambiguous and therefore could be “liquidated” through practice.

In many cases, this information will be adequate to the task.  It is true that this information is not complete.  But no historical evidence ever is.  It is always subject to the possibility that other information may be found relevant to the issue.  And if historians can come up with additional relevant evidence, that would be great.

But in terms of the practice of originalism, the question is how often historians come up with information that actually changes scholars’ views as to the original meaning of a provision.  The mere possibility that they will sometimes come up with that information is not enough to show that originalist investigations are inadequate.  One wants to know how often this occurs.  Based on my experience, it is not obvious that the work of historians is regularly needed before anyone can provide a strong case of the original meaning of a provision.

In my last post in this series, I will discuss a case where originalist scholars have struggled to understand the original meaning of a provision and what the role of historians might be as to this interpretive effort.

Seth Barrett Tillman: Business Transactions and President Trump's 'Emoluments' Problem
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted Business Transactions and President Trump's 'Emoluments' Problem on SSRN.  Here is the abstract: 

Recently, it has been argued that the term “emoluments”—as used in the Constitution’s Foreign Emoluments Clause and Presidential Emoluments Clause—reaches any pecuniary advantage, benefit, or profit arising in connection with business transactions for value. There is good reason to doubt the correctness of this position.

(For related thoughts by Eugene Kontorvich and Andy Grewal, see here.)

ADDENDUM:  Also -- of course -- here from Robert Natelson.


Historians and Originalists Part I: The Context of the Debate
Mike Rappaport

In recent years, there have been acrimonious debates – both formal and informal – between these two groups.  Historians have viewed law professor originalists as engaged in an amateurish attempt to understand historical meanings that is often result oriented.  Originalist law professors have viewed the historians as protecting their own turf by endlessly lecturing the originalists about the historians' superiority, with the historians then sometimes misunderstanding what original meaning is.  It has been a relationship in dire need of improvement.

One of the problems is that methodological differences between the disciplines are often reinforced by political differences.  Most of the historians tend to be on the left, while most of the originalist law professors are on the right.  The methodological differences are bad enough without being magnified by politics.  For example, even when I talk to right wing historians who are somewhat sympathetic to originalism, I still find myself often disagreeing with their methodological points.  These methodological differences are important.  Matters only become worse when we add political fuel to the fire.

Another problem is that the two disciplines often are pursuing different goals.  Originalists are seeking the original meaning, with different originalists defining that differently – for example, some seek the legal meaning, others the ordinary meaning.  Historians are often concerning with other issues, such as why different groups sought a particular provision or how provisions changed over time.

Thus, I was pleased to see two articles written by Stanford History Professor Jonathan Gienapp presenting the historians side of the argument with a lot more understanding of and respect for originalism than historians ordinarily exhibit.  That is not to say that I agree with all of his arguments, but his essays are a big improvement.  Happily, Gienapp’s argument has been engaged by various originalists, including Randy Barnett, Mike Ramsey, and Larry Solum.

Much of Gienapp’s first essay argued that the newer originalist theories purported to avoid having to possess detailed knowledge about history.  Instead, these originalists would merely need to know the linguistic meaning of the terms.

In Gienapp’s second essay, he argues that the newer originalists have underestimated how difficult it is to understand late 18th century English.  Instead, they need to appreciate that historians are specialists in understanding the past and therefore their skills are needed to genuinely understand the original meaning.  The techniques by originalist law professors are generally not adequate.

Ultimately, I agree with Professor Gienapp in at least this sense: the more knowledge and information we have, the better.  Historians and law professors bring different perspectives and different skills to the table and generally our understanding of the past will benefit if we have more knowledge.  Thus, historians can make a contribution.  But even if more knowledge is better than less, the key question is how important different types of knowledge is and how much each contributes to the enterprise of discovering the original meaning.

In my next post, I want to focus on a more specific question – whether the techniques used by originalists are usually adequate to the task of determining the original meaning and how often the contributions of historians are needed.

Extraterritorial Constitutional Rights: How Does Originalism Answer the Question in Hernandez v. Mesa? Part 2
Andrew Kent

This is the second of two posts examining whether the Constitution and Bill of Rights, in their original public meaning, provided protections extraterritorially to citizens or noncitizens.

In Part I, I argued that there are some textual hints that the Constitution has a domestic focus, but that it is not possible to definitively discern the geographic scope of constitutional rights from the bare semantic meaning of the text. It does seem clear, however, that constitutional rights are not reserved for citizens only, unless that word is specifically used to describe the rights holders—which it rarely is.


When very common words are used in the constitutional text—for example, people or person discussed in my earlier post—and thus original semantic meaning cannot be derived from eighteenth century word usage alone, Randy Barnett and other public meaning originalists advise us to look at the "publicly known purpose" for which the provisions were added to the Constitution.

Nothing about the contexts in which the original Constitution or the Bill of Rights were framed and ratified suggests any purpose to protect with constitutional rights noncitizens outside the United States. Certainly many provisions of the Constitution were meant to benefit noncitizens—but when they were in the United States or, if not, under then treaties, the law of nations, statutes, or the common law. Examples include Article III diversity jurisdiction and arising under (treaty) jurisdiction.

Looking at the Bill of Rights specifically, the overriding purpose was to quiet public fears that the new federal government would overreach, harming the liberties of the American people or intruding into areas reserved for the states. And as Leonard Levy relates, James Madison—the primary author of the Bill— stated that in the proposed Bill he “had recommended only the familiar and avoided the controversial. He warned against enumerating anything except ‘simple, acknowledged principles.’" As Justice Robert Jackson wrote, "extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment [at the Founding]. Not one word can be cited."

The Allegiance-Protection Framework

In addition to the purpose and context of the Constitution, the key to understanding how the geographic or person domain of the Constitution was originally understood is a common law and political framework that underlay the document, the protection-allegiance framework. As Philip Hamburger has shown, and I have discussed at length (here, here, here),  at the Founding, protection of the laws was understood to be stand in a reciprocal relationship with allegiance to the government. Citizens or subjects owed allegiance and were protected by the courts and the law of the land, whether home or abroad. Noncitizens or non-subjects when visiting or residing in Britain or America owed a local or temporary allegiance to the government, and so they temporarily had corresponding protection. But that protection disappeared when the obligation of allegiance did—when the foreigner left the country. As Blackstone put it, “as the prince affords his protection to an alien, only during his residence in this realm, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire.” At common law, alien enemies—nationals of a country with which Britain was at war—were excluded from protection of the law even if they were within the country.

There is plenty of evidence showing that statesmen and constitution-drafters of the Founding era considered the allegiance-protection framework to be fundamental. Hamburger shows how the framework appeared in the Declaration of Independence, important resolves of the Continental Congress, and state constitutions. There is also plenty of evidence showing that this common law allegiance-protection framework was understood to qualify and limit the broad text of constitutional rights, but this evidence is found in the post-ratification period. Direct evidence from the ratification debates that the framework was implicitly understood to limit the reach of constitutional rights is slim. Madison did indicate to the Virginia convention that alien enemies would not be able to sue in federal court—notwithstanding the broad language of Article III. But other clear examples like this are lacking.

But the "simple, acknowledged" rights found in the Constitution and Bill of Rights were primarily taken from the common law—habeas corpus, the jury, the privilege against self-incrimination, due process, the rights to confront witnesses, bear arms, petition the government, etc. It would have made sense to look to the common law to understand who could claim these rights, in what places, and in what contexts. This move—looking to the common law to contextualize the scope of constitutional rights—is supported, as I have argued here, by the kind of public meaning originalism advanced by John McGinnis and Michael Rappaport. As I understand it, this method of originalism holds that readers of the Constitution would have understood that they needed to apply the appropriate interpretive rules to the document, and that those rules could have included common law allegiance-protection rules about who could claim rights.

But what about constitutional provisions framed not as individual rights, but as limitations on government power—does the allegiance-protection framework also govern the scope of these provisions? Could Congress, for example, pass a bill of attainder directed at an alien enemy? That person could not access the courts to claim the protection of the law in order to challenge the constitutionality of such a bill. But the constitutional text is framed as a flat prohibition on any bills of attainder. I think the right answer is that Congress could not pass any bills of attainder, no matter who directed at. This is in part based on the unqualified text of the provision at issue, and in part based on the horror with which the Founding generation viewed the abusive practice of such bills.

Case by case analysis like this would need to be conducted on other constitutional provisions that refer not to rights holders but to limitations on government power.


Although this conclusion is not free from doubt, I believe the best understanding of the original meaning of the Constitution is that a non-U.S. citizen like Hernandez, who was injured by the U.S. government in foreign territory, would not have a constitutional right to assert. But this does not mean that such a person would have been bereft of any legal recourse at the Founding. A non-enemy alien injured in his or her person (or property) by a U.S. official could have brought a tort suit, even if this injured party was a noncitizen injured outside U.S. territory. This suit could have been brought in U.S. court and, most likely, also in the courts of the foreign country where the injury occurred. The substantive law would have been non-federal: either foreign law, common law, or the general law of nations. As I and others have discussed, however, a combination of legal developments in the courts and Congress in the twentieth century mean that today, someone like Hernandez generally must bring a tort suit under the substantive law of the Constitution. Once that occurred, tort remedies became dependent on the rules about the geographic scope of constitutional rights for noncitizens.

Stephen Sachs on BNSF Railway Co. v. Tyrrell
Michael Ramsey

BNSF Railway Co. v. Tyrrell (argued to the Supreme Court today, see SCOTUSblog summary here), Stephen E. Sachs (Duke) this interesting amicus brief, also posted on SSRN.  Here is the SSRN abstract:

BNSF Railway Co. should win this case, but on statutory grounds alone. BNSF makes three arguments:

1) That Daimler AG v. Bauman forbids Montana’s exercise of general personal jurisdiction here;

2) That Congress has not sought to license the state’s exercise of jurisdiction; and

3) That such a license would be void under the Fourteenth Amendment.

BNSF’s first two arguments are fully persuasive and decide the case. As a result, the Court should decline to reach the third argument. Not only is it unnecessary to decide, it has the further defect of being wrong.

Respondents’ case hinges on whether Congress in 1910 affirmatively licensed state personal jurisdiction over railroads doing business within state lines. It did not. The 1910 Act specified which federal courts might hear certain actions under the Federal Employers’ Liability Act. It did not say which state courts might do so—only *that* state courts might do so. Later discussions of doing-business jurisdiction in fact referred to a preexisting standard for state personal jurisdiction, established well before International Shoe. Respondents’ theory gets things backwards: Congress did not reshape state personal jurisdiction to fit the statutory rules for federal courts; rather, it shaped the statutory rules for federal courts to fit preexisting rules for state personal jurisdiction.

While Congress in 1910 left state personal jurisdiction as it found it, this Court’s modern decisions have not. Respondents do not ask for Daimler to be overruled, nor do they deny that Daimler requires reversal in the absence of a statutory override. This is enough to end the case.

That being so, the Court has no need to reach an important constitutional question. This Court has never squarely decided whether Congress may license the exercise of state personal jurisdiction that might otherwise be invalid. It should not do so in this case. “[N]ormally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,” and here there are further reasons for reticence. The United States did not participate before the Montana courts, and limiting Congress’s power in this case may have the effect of striking down other federal statutes or may undermine ongoing legislative efforts and treaty negotiations. If the Court is going to restrict the power of Congress, it should wait for a case in which Congress has actually tried to use the power in question, and in which the United States has been available to defend it.

The Court may be tempted to reach the issue regardless, simply because it seems easy—so easy, in fact, as to obviate any need for caution. Congress cannot license what the Constitution forbids, and the Constitution is widely thought to forbid particular types of personal jurisdiction. Yet that widespread belief is actually mistaken. When originally enacted, the Fifth and Fourteenth Amendments did not themselves impose any fixed limits on personal jurisdiction. They required only that a court *have* jurisdiction, over the subject matter as well as the parties—with the substantive doctrines of personal jurisdiction supplied by separate bodies of general and international law. The Fourteenth Amendment, in particular, was correctly understood by this Court in Pennoyer v. Neff to create a federal question of what had been merely a matter of general law, outside the scope of Article III appellate review. Modern doctrine is correct to hold that federal courts can review state judgments for their compliance with jurisdictional standards. But it is wrong to suggest that those standards are supplied by the Constitution itself, and so may not be altered by treaty or by Congress’s enumerated power under Article IV.

To be clear: this brief does not suggest that the Court conduct its own inquiry as to the original law of due process, or even discuss the issue in any way. The necessary arguments were not briefed at the certiorari stage; they were not raised in the Montana courts; and they have been overlooked by decades of contrary decisions. Yet if the Court now finds itself in a deep hole of incorrect precedent, the least it can do is to stop digging. It should reverse and remand this judgment on statutory grounds, and it should wait for an appropriate case in which to consider the powers of Congress.