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37 posts from July 2017


D.C. Circuit Finds Right to Carry Arms in Public
Michael Ramsey

Per Judge Thomas Griffith, in Wrenn v. District of Columbia, with substantial originalist/historical analysis.  As summarized by David Kopel at Volokh Conspiracy:

D.C. had argued that England’s 1328 Statute of Northampton banned all arms-carrying, and this controls the meaning of the Second Amendment. (Several legal historians and I argued to the contrary, in the amicus brief cited above.) On the matter of English history, the D.C. Circuit found that “for every point there is an equal and opposite counterpoint.” However, “the state of the law in Chaucer’s England — or for that matter Shakespeare’s or Cromwell’s — is not decisive here.” Instead, “the history showcased in Heller I contradicts the main scholar” (Patrick Charles) who contends that there is no right to carry. For example, Heller said that by the time of the English Bill of Rights in 1689, the right to arms included the right to “carry weapons in case of confrontation.” Likewise, “James Wilson — early commentator, virtual coauthor of the Constitution, and member of the Supreme Court’s first cohort,” had explicated that “Founding-era Northampton laws banned only the carrying of ‘dangerous and unusual weapons, in such a manner, as will naturally diffuse a terrour in the people."

D.C. had offered a second major argument that there is no meaningful right to bear arms: Based on the writings of Saul Cornell, D.C. contended that several 19th-century state “surety of the peace” statutes prohibited carrying in most circumstances. As the court pointed out, this argument was based on misreading the statutes. Under these statutes (the first of which was enacted in Massachusetts), anyone could carry arms. If someone else brought a civil case alleging that carrier was threatening to breach the peace, the carrier could be forced to post bond for good behavior. After posting bond, the carrier could go on carrying.

Thus, the District’s historical arguments that there is no right to carry, or no right to carry in cities, were incorrect. To the contrary, “carrying beyond the home, even in populated areas, even without special need, falls within the Amendment’s coverage, indeed within its core” (citing, among other authorities, Eugene Volokh’s oft-cited “Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda,” 56 C.L.A. L. Rev. 1443 (2009)).

But will it survive en banc review?  (Judge Henderson dissented).


Tribe versus Tushnet: Can the President Pardon Himself?
Michael Ramsey

Can the President pardon himself?  Mark Tushnet has the strict textualist's answer (part of a Vox survey of fifteen law professors; unfortunately there's a lot of hedging in the other answers):

The president's constitutional power to pardon "offenses against the United States" is limited only by excluding "cases of Impeachment." A self-pardon for ordinary criminal offenses does not fall within that exception, on my understanding.

A self-pardon might well be outrageously improper (unless there was the prospect of charges brought by a rogue prosecutor, whom, for some reason, the president could not control by firing him or her), but the response the Constitution creates for such misconduct is impeachment, a political rather than criminal remedy.

That is, the pardon power is granted comprehensively, subject to express exceptions (only for federal offenses, and not against impeachment), and the self-pardon isn't one of the exceptions.  Expresso unis, etc.  And, I'd add, this is an issue the framers clearly could have envisioned and provided for, but didn't.  It seems that, for the textualist, Professor Tushnet has it right.  (Wish he felt this way about, well, the rest of the Constitution).

In the Washington Post, Laurence Tribe, Richard Painter and Norman Eisen take the other view: No, Trump can’t pardon himself. The Constitution tells us so.   Their principal argument is based on the "enduring principle" that no person may be a judge in their own case:

[When deciding on a pardon], the president is acting as a kind of super-judge and making a decision about someone else’s conduct, the justice of someone else’s sentence or whether it is in the national interest to prosecute someone else. He is not making a decision about himself.

Self-pardon under this rubric is impossible. The foundational case in the Anglo-American legal tradition is Thomas Bonham v. College of Physicians, commonly known as Dr. Bonham’s Case. In 1610, the Court of Common Pleas determined that the College of Physicians could not act as a court and a litigant in the same case. The college’s royal charter had given it the authority to punish individuals who practiced without a license. However, the court held that it was impermissible for the college to receive a fine that it had the power to inflict: “One cannot be Judge and attorney for any of the parties.”

I'm not persuaded.  Let's assume that the principle of Bonham's case is actually part of the Constitution (even though it's not, textually speaking).  It is (if anything) a limit on judicial power.  But Tribe et al. are fundamentally mistaken in equating the pardon power with the judicial power.  The pardon power is, and was in England, an executive power.  If in fact its effects were to make the holder "a kind of super judge" (or as they say elsewhere, "essentially in the role of the judge") then it would have to be exercised according to law, as judgments are.  However, that's not how it works; the pardon power is discretionary (or prerogative, the English would say) -- a power exercised according to the executive's assessment of the policy merits and expediency, not as an implementation of standing law.  As such, common law limits on judicial power don't apply, because it simply isn't an exercise of judicial power. 

Tribe et al.'s second main argument is closer to the mark:

The Constitution’s pardon clause has its origins in the royal pardon granted by a sovereign to one of his or her subjects. We are aware of no precedent for a sovereign pardoning himself, then abdicating or being deposed but being immune from criminal process. If that were the rule, many a deposed king would have been spared instead of going to the chopping block.

I think this could be the basis of a tenable originalist argument.  It's not so much the absence of precedent -- that's a start, but the fact that the pardon power wasn't actually used in a particular way in pre-constitutional England does not mean it couldn't have been.  Suppose, for example, that in England the king had never used the power to pardon close family relatives.  Unless there were some evidence that people generally thought the king lacked the power to pardon close family relatives, the fact that the power was never actually exercised in this way does not show that it could not be.

There's a stronger claim in the case of the king himself, however.  In English law the king (or queen) was not subject to criminal process at all.  So the idea of a royal self-pardon against criminal process would have been nonsensical.  It's not that under English law it wouldn't have been allowed; it's that under English law the whole concept would have been incoherent.

Arguably, then, then, the pardon power by definition does not include self-pardons -- not because self-pardons are somehow nontextually excluded from it on policy grounds, but because they were never part of it in the first place.  The pardon power was the king's power to excuse someone else from the criminal process.  It had no application to the king himself, who was not subject to the criminal process in the first place.  On this view, carried over to the U.S. system, it is the President's power to excuse someone else from the criminal process.  It would take something in the constitutional text to extend it to presidential self-pardons.

So in the end my originalist answer is also a bit hedged.  It depends on how much of a textualist you are, or how much you find textual meaning in the specifics of the text's English antecedents.


Donald Mayer & Adam Sulkowski: Emoluments and Implications from Conflict of Interest Laws and Private Sector Fiduciary Duty
Michael Ramsey

Donald O. Mayer (University of Denver - Department of Business Ethics and Legal Studies) and Adam J. Sulkowski (Babson College) have posted Emoluments and Implications from Conflict of Interest Laws and Private Sector Fiduciary Duty on SSRN.  Here is the abstract:

In this article, the ethics of public service and the relatively untested Emoluments Clause of the U.S. Constitution will be considered and contrasted with the jurisprudence surrounding conflict of interest in the private sector. Part I establishes the framers’ understanding of law and ethics for U.S. public service. Part II considers the clause itself, and whether it applies to the office of the President. Part III relates just a few of the foreign-based business interests of the 45th U.S. President and how they could compromise his loyal discharge of duties to the nation he serves. Part III also analyzes the President’s plan to avoid conflicts of interest, finds it inadequate, and concludes that only full disclosure of his tax returns would reveal the complete range of conflicts that might color his judgment as President of the United States.

Moving beyond the descriptive to the more normative business ethics issues, Part IV describes the insights of behavioral psychology to demonstrate how common it is for people and politicians to overlook their own conflicts of interest, even where those conflicts strongly influence their decisions. Part V summarizes observations related to conflict of interest laws and fiduciary duties in business, lending support to the conclusion that Trump’s attempt to hold the office of president would be untenable in other contexts. Returning to legal issues raised by the President’s conflicts of interest, Part VI describes the federal lawsuit filed by Citizens for Responsibility and Ethics in Washington (CREW). CREW seeks an injunction on Mr. Trump’s holding office while holding various assets subject to foreign governmental influence, and Part IV offers insight into how a challenge to standing could be overcome. Both courts and Congress — the ultimate judges of the President’s conflicts of interest, at least until the next election cycle –– should support the original intent and plain meaning of the Emoluments Clause. Without Congressional action, however, it is unlikely that the President’s conflicts of interest will be resolved early in his term of office.

To continue a theme, note the emoulments clause originalism! "Both courts and Congress — the ultimate judges of the President’s conflicts of interest, at least until the next election cycle –– should support the original intent and plain meaning of the Emoluments Clause."

(Via Seth Barrett Tillman, who comments (harshly) here).


Adrian Vermeule: Reviewability and the 'Law of Rules'
Michael Ramsey

Adrian Vermeule (Harvard Law School) has posted Reviewability and the 'Law of Rules': An Essay in Honor of Justice Scalia (92 Notre Dame L. Rev. 2163 (2017)) on SSRN.  Here is the abstract: 

This essay contrast two different approaches to reviewability in administrative law, one associated with Justice Antonin Scalia, the other associated with Justice John Paul Stevens, and also on display in recent litigation over the Trump administration's "travel ban." Justice Scalia developed a consistent approach to questions of reviewability: roughly, the idea that “general programs” and “general policies” are to be excluded from judicial review, and even general and legally binding agency rules may or may not be reviewable before enforcement. On this approach, the paradigmatic business of courts is to review specific applications of agency rules to particular parties. For Justice Stevens, by contrast, the principal role of courts is to say what the general rules of law are, leaving agencies (reasonable) discretion in application.

The two approaches differ as to the relationship between reviewability and the idea—perhaps Justice Scalia’s most famous contribution to legal theory—that the rule of law is best understood as “a law of rules.” On the Stevens view, reviewability should attempt to ensure that courts review the overall legality of programs and policies to keep the administrative state within the broad bounds of the rule of law. The Scalia view, by contrast, admits into court only agency action at the point of specific application, but then demands that judges analyze the validity of the specific application under general rules. The rule of law, qua law of rules, operates primarily as a constraint on the types of rationales courts may give for their decisions of particular cases, once those cases are already in court.

(From the Notre Dame Law Review symposium issue on Justice Scalia; my contribution is here).


Forthcoming: "Scalia Speaks" by Christopher Scalia & Ed Whelan
Michael Ramsey

Via NRO: Announcing Scalia Speaks: Pre-Order a New Collection of Speeches by Antonin Scalia

Courtesy of Crown Forum:

Scalia Speaks: Reflections on Law, Faith, and Life Well Lived, by Antonin Scalia, with a foreword by Justice Ruth Bader Ginsburg, and edited by Christopher J. Scalia and Edward Whelan, will be on sale nationwide on October 3, 2017, from Crown Forum, an imprint of the Crown Publishing Group. The title and publication date were announced today by Tina Constable, Senior Vice President and Publisher, Crown Forum. The book was acquired by Crown Forum Executive Editor Mary Reynics from Robert Barnett of Williams & Connolly, LLP, and will be issued simultaneously in hardcover, digital, and audio formats.

Scalia Speaks collects dozens of Justice Scalia’s best speeches, including some deeply personal talks, on topics as varied as the law, faith, virtue, pastimes, and heroes and friends. Only a small handful of these speeches have ever been published before. The volume is edited by Christopher J. Scalia, his youngest son, and Edward Whelan, one of the Justice’s former law clerks. In his intimate introduction, Christopher Scalia writes, “Working on this collection has been a moving experience. It has been an honor to help family, friends, and colleagues re‐experience a man they admired, and to allow others to encounter for the first time someone whose influence they have heard about and whom they want to understand for themselves. . . . We know that these speeches will help his great American legacy endure.”

Americans have long been inspired by Justice Scalia’s ideas, delighted by his wit, and instructed by his intelligence. Scalia Speaks will give readers the opportunity to encounter the legendary man more fully, helping them better understand the jurisprudence that made him one of the most important justices in the Supreme Court’s history and introducing them to his broader insights on faith and life. Few people in American history have made the lasting impact that Justice Antonin Scalia did in his lifetime. A Supreme Court justice for three decades, married to his beloved wife, Maureen, for more than fifty years, a father to nine children, a grandfather to dozens, and a friend to people of all political stripes, Justice Scalia lived a life that was remarkable in its significance and reach. Known for his wisdom, wit, and warmth, Justice Scalia was a sought‐after speaker at commencements, convocations, and events across the country. 

More from the book's co-editor Ed Whelan here, including:

Scalia Speaks is designed for a general audience and is replete with Justice Scalia’s characteristic wisdom, clarity, and humor. There are a lot of great speeches on legal topics, all readily accessible to the non-lawyer. As the subtitle suggests, we’ve included many speeches on other topics: for example, faith, character, tradition, ethnicity, education, turkey hunting, and even the games and sports that a young Nino Scalia played on the streets of Queens in the 1940s. The book also features several of the Justice’s moving, and often funny, tributes to friends.

Only a small handful of the dozens of speeches in the book have ever been published before.

Pre-order here.


Joseph Kimble (and Others) on Textualism
Michael Ramsey

Joseph Kimble (WMU-Cooley Law School) has posted What the Michigan Supreme Court Wrought in the Name of Textualism and Plain Meaning: A Study of Cases Overruled, 2000–2015 (Wayne Law Review, Vol. 62, No. 3, 2017) on SSRN. Here is the abstract:

This article reviews and codes 96 cases overruled by the Michigan Supreme Court during 15 years. Those overrulings, made by justices who are textualists, show a strong ideological tilt toward conservative results. Along the way, the article discusses plain meaning (or plain language) in interpretation, definitions of ambiguity, the use of dictionaries, and the surplusage canon. The article concludes that, in practice, textualism is not nearly as objective and politically neutral as it professes to be.

Also from Professor Kimble, the short version, at the ACS Blog: The Ideology of Textualism. From the introduction:

Advocates of textualism promote it as a neutral, objective, apolitical theory of interpretation — one that is above ideology. Whenever you hear a judge describe himself or herself as a “rule of law” judge, you can bet that the judge is a textualist. A textualist supposedly respects the democratic process and does not impinge on the legislature’s role. He or she adheres to established and well-founded canons of construction in merely “interpreting” law. As Justice Gorsuch put it in his first majority opinion (page 11), “[T]he proper role of the judiciary [is] to apply, not amend, the work of the People’s representative

That is the mantra. But the reality is altogether different. Textualism has become the brand of conservative judges and judging. And there is in fact strong — if not incontrovertible — evidence that textualism, as practiced, produces conservative results.

RELATED (from earlier):  John O. McGinnis at Law and Liberty: The Good Justice is Just a Judge by Another Name. From the introduction:

Supreme Court observers have expressed surprise and some have voiced criticism that Neil Gorsuch has been so assertive at oral argument and in his opinions so early in his tenure. Most justices have taken some time to decide how to approach this very important job.  Justice Stephen Breyer in fact claimed he was “frightened to death” for his first three years.

But Gorsuch’s confident performance flows directly from his formal conception of law. Being a Supreme Court justice for a formalist is no different from being any other kind of judge and in particular no different from being the Court of Appeals judge Gorsuch had been for over ten years. Under this view, the lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.  Thus, as a formalist and experienced judge Justice Gorsuch was able to act forcefully from day one on the Supreme Court.

With this response from Eric Segall at Dorf on Law: Justice Gorsuch and Foolish Formalism. From the introduction:

Professor John McGinnis wrote an essay at the Law & Liberty Blog praising Justice Gorsuch for his commitment to a “formal conception of law.” While others have criticized Gorsuch for his aggressive questioning and decision-writing so early in his SCOTUS career, McGinnis defended Gorsuch, arguing that his confidence stems from Gorsuch’s view that a “lawful judge should render judgment on the basis of his best judgment about the meaning of statutory and constitutional provisions that are put before him or her and candidly set out the reasoning in support, regardless of the political consequences and regardless of what others think.”  According to McGinnis, being a Supreme Court Justice for a formalist is "no different from being any other kind of judge.”  Because Gorsuch is an “experienced judge” who believes in formalism, he “was able to act forcefully from day one on the Supreme Court.”

Professor McGinnis is a respected scholar. His views on originalism, in a book he wrote with Professor Michael Rappaport, are interesting, provocative, and need to be taken seriously (which I do in my forthcoming book). But this praising of Justice Gorsuch, and his commitment to formalism, is both unpersuasive and dangerous.


David Weisberg on John Mikhail and Original Meaning
Michael Ramsey

David Weisberg comments:

 John Mikhail’s paper, “The Definition of 'Emolument' in English Language and Legal Dictionaries, 1523-1806”, is a quintessential, paradigmatic illustration of the illogic that flourishes when one ignores what I have identified in my paper, “Originalism is Dead…Long Live Identicalism”, as the Paradox of Originalism.


The Paradox can be stated thusly: If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.


Prof. Mikhail clearly believes that the relevant definition of “emolument” can be determined only by referring to dictionaries published from 1523 to 1806; he concludes that the word has a “broad definition” making it roughly synonymous with: “profit,” “gain,” “advantage,” or “benefit.”  But apparently he never considers whether those four words have the same meaning today as they had in the period from 1523 to 1806.  If he did consider that question, he would certainly realize that the method he employs to determine the time-dated original meaning of “emolument” leads inexorably to an infinite regress which cannot yield any result.

There is no reason whatsoever to presume that the meaning of “emolument” in 1788 is any different from the meaning it has today.  If one presumes, without any particular reason, that any word in the Constitution has a time-dated original meaning, one effectively embraces the Paradox of Originalism and all the illogic it generates.

Nicole Stelle Garnett: Justice Scalia's Rule of Law and Law of Takings
Michael Ramsey

Nicole Stelle Garnett (Notre Dame Law School) has posted Justice Scalia's Rule of Law and Law of Takings (41 Vermont Law Review 717 (2017)) on SSRN.  Here is the abstract:


This short essay reviews the regulatory takings legacy of Justice Antonin Scalia, evaluating both its impact on the Supreme Court's takings canon and its consistency with his stated jurisprudential principles.


And here is the introduction:

The United States Supreme Court decided more than two dozen cases raising Fifth Amendment “takings” claims during Antonin Scalia’s 30-year tenure.  By my count, Justice Scalia authored only three of the majority opinions in these cases (and one of them was partially a plurality opinion), although he joined the majority in most of the rest.  Somewhat surprisingly, Justice Scalia authored only one dissenting option in a takings case during his 30 years on the Court,3 along with a handful of concurrences. The members of this panel have been assigned the task of assessing the impact of these opinions on the Court’s takings jurisprudence. I strongly suspect that, as the sole conservative on the panel, the group implicitly assigned me the role of defending Justice Scalia’s decisions against charges of unprincipled judicial activism. I am happy to embrace that charge, although my assessment of Justice Scalia’s opinions falls slightly short of a full-throated defense. 

My answer to the question posed to the panel: Justice Scalia’s decisions had a modestly significant impact on takings law. He penned the majority opinion in two of the most significant cases in recent years, Nollan v. California Coastal Commission and Lucas v. South Carolina Coastal Council.5 As expanded in subsequent decisions, Nollan arguably has proven the most significant in terms of real-world impact. But, the extent of that impact is largely the result of subsequent exactions opinions that Justice Scalia joined but did not author. Lucas, on the other hand, is more interesting as a matter of constitutional and property theory than Nollan, but subsequent decisions have arguably limited the opinion’s impact. Justice Scalia’s opinions—especially several of his concurrences and one dissent from a denial of certiorari—also anticipated important aspects of the future trajectory of the Court’s takings jurisprudence. 

My assessment of whether these opinions diverge from the jurisprudential principles that guided much of Justice Scalia’s work on the Court is mixed. Justice Scalia was an “original meaning” originalist who loosely adhered to the principle of stare decisis, and strongly preferred clear legal rules over vague standards.8 Takings questions pose a particular challenge for originalists, including myself, because so little is known about the original meaning of the Takings Clause. And they also pose a particular challenge for jurists who, like Justice Scalia, favor clear, generalizable rules over fact-dependent balancing tests. After all, the question of whether government regulation “goes too far” is about as vague and fact-specific as legal questions come.9 In light of these difficulties, and Justice Scalia’s jurisprudence, I think that some of Justice Scalia’s takings opinions (e.g., Lucas) are more “principled” than others (e.g., Nollan).

RELATED:  This earlier post on regulatory takings and originalism.


Abbe Gluck: Congress, Statutory Interpretation, and the Failure of Formalism
Michael Ramsey

Abbe Gluck (Yale Law School) has posted Congress, Statutory Interpretation, and the Failure of Formalism: The CBO Canon and Other Ways that Courts Can Improve on What They are Already Trying to Do (University of Chicago Law Review, Vol. 84, No. 1, 2017) on SSRN.  Here is the abstract:


The formalist project in statutory interpretation, as it has defined itself, has been a failure. That project—typified by but not limited to Justice Antonin Scalia’s brand of textualism—has been doomed because even its staunchest supporters have been unwilling to carry it out. The rules that judges employ are too numerous to be predictably chosen. There is no ranking among them. They are not treated as blackletter, precedential law. Even formalist-textualist judges, it turns out, crave interpretive flexibility, do not want to be controlled by other courts or Congress, and feel the need to show their interpretive actions are democratically linked to Congress.

What we actually have instead is an approach whose legitimacy depends, in large part, on understanding how Congress works. Establishing the incomplete execution of formalism is a crucial first step in this argument, because the fiction that textualism has been successful in achieving its goals has prevented us from seeing what judges actually want and, in fact, are actually doing.

With that understanding, it becomes clear that better judicial understanding of the realities of congressional drafting practice will not only make statutory interpretation practice more legitimate, but also advance the enterprise of what most judges—even formalists—already see their job to be. If formalism originally began as a second-best alternative to understanding Congress, understanding Congress has emerged as a second-best alternative to carrying out the formalist project.

After laying this groundwork, this Essay offers ten new rules of statutory interpretation— objective, formalism-compatible rules, but rules grounded in congressional practice. It especially highlights one new rule—the CBO Canon—and then offers nine more, including an anticonsistency presumption and presumptions about different legislative vehicles, multiple agency delegations, dictionaries, and special legislative history. Judges of all interpretive stripes have shown new interest in applying this kind of real-world understanding of the legislative process to statutory interpretation doctrine. The goals here are to explore why that might be the case; to meet some of the objections that have been raised about the use of such evidence; and to offer examples to illustrate the very possibility of what might be, and in some cases already is.




Gary Lawson: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Take the Fifth... Please!: The Original Insignificance of the Fifth Amendment's Due Process of Law Clause (Brigham Young University Law Review, forthcoming) on SSRN. Here is the abstract:

The Fifth Amendment’s Due Process of Law Clause adds nothing to the Constitution’s original meaning. Every principle for limiting federal executive, judicial, and even legislative powers that can plausibly be attributed to the idea of “due process of law” – from the principle of legality forbidding executive or judicial action in the absence of law to the requirement of notice before valid judicial judgments to a limitation on arbitrary governmental action that today goes under the heading of “substantive due process” – is already contained in the text and structure of the Constitution of 1788. The Fifth Amendment Due Process of Law Clause confirms those principles but does not create them. Accordingly, originalist attention should be focused on the Constitution itself, not on the “exclamation point” added to it in 1791.

This article defends those claims and also briefly explores why and how modern doctrine has moved from this substantively-oriented account of limitations on governmental powers to a focus on executive and judicial procedures. That shift may result in some measure from doctrine under the Fourteenth Amendment’s Due Process of Law Clause. The limitations on federal power built into the Constitution of 1788 obviously do not apply to state governments, so attributing the Fifth Amendment’s meaning to the Fourteenth Amendment makes little sense (though if that really is what the original meaning of the Fourteenth Amendment does, that is just life). A proceduralist account of due process of law makes some sense under the Fourteenth Amendment, but it is a large mistake to read that proceduralist account back into the Fifth Amendment.

The bottom lines are that the Fifth Amendment’s Due Process of Law Clause (1) is much more about substance than about procedure and (2) is basically irrelevant to the Constitution’s original meaning.