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34 posts from September 2017


Peter Bayer: Deontological Originalism
Michael Ramsey

Peter Bayer (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process' on SSRN. Here is an excerpt from the abstract:

This article offers what has been needed but lacking in modern legal commentary: thorough, meticulous and timely proof that, pursuant to principles of Originalism, the Constitution - the highest law of the United States - mandates that any governmental act is unconstitutional if it is immoral.

Specifically, this article returns fundamental constitutional jurisprudence to where it rightly was until roughly a century ago; and, where, recently, it has been returning in the form of Supreme Court substantive due process precedents based on human dignity. The overarching concept, which I call Deontological Originalism, asserts that both the Founders of this Nation and the Reconstruction Congress properly believed in natural rights derived from principles of natural law. Accordingly, they sought to enforce through the Constitution, the natural rights philosophy set forth in the Declaration of Independence. Most importantly, natural law and resultant natural rights are deontological, that is, they enforce a priori, immutable moral precepts that descend not from human imagining but from the natural order of existence, what the Declaration denoted as, “Nature and Nature’s God.” That is why, under the Constitution, any and all immoral governmental conduct is unconstitutional regardless of bureau or actor - legislative, judicial, executive or administrative - and regardless of level - federal, state or local.

Unlike articles that aver similar ideas, this writing presents Deontological Originalism as a metatheory, meaning, it expounds at once essentially all fundamentals, and their respective proofs, as indeed any work defining and defending a theory of Originalism should do. Metatheory accounts for this commentary’s length; but, frankly, it is time that one law review article presented a meta-theoretical perspective given the exasperated skepticism and postmodernist complacency most often greeting serious assertions that the Constitution enforces natural law and, therefore, the bench and bar must become “natural lawyers” when addressing constitutional rights. After thirty years of perhaps sporadic writings addressing many of the relevant aspects, I offer Deontological Originalism, a venture proceeding from the utility of Originalism, to the meaning of Deontology, to the intent of the Founders and of the Reconstruction Congress, to the deontological principles of Enlightenment philosopher Immanuel Kant, to modern due process dignity theory enforcing Deontological Originalism through Kantian morality, culminating in the Supreme Court’s bravura rulings requiring that Government accord same-sex marriage the full and equal legal status accorded opposite-sex marriage.


Jennifer Mascott: Constitutionally Conforming Agency Adjudication
Michael Ramsey

Jennifer L. Mascott (George Mason University - Antonin Scalia Law School) has posted Constitutionally Conforming Agency Adjudication (Loyola Journal of Regulatory Compliance, forthcoming (2017)) on SSRN.  Here is the abstract:

In June 2017 the D.C. Circuit issued a judgment that essentially reaffirms the constitutionality of current appointments procedures for administrative law judges (ALJs) in the Securities and Exchange Commission (SEC). After conducting an en banc hearing in the case, the en banc court split evenly over whether the ALJs are “Officers of the United States” subject to the constitutional requirement of appointment by the president, a department head, or a court of law. The evenly divided vote resulted in the affirmance of the D.C. Circuit’s earlier panel decision finding that the ALJs are not “officers”—continuing the court’s split with the Tenth Circuit, which has concluded the ALJs are “officers.” The continued split and the en banc posture of the case mean this issue may receive consideration by the Supreme Court.

This essay responds to a widely cited article by Professor Kent Barnett that suggested ALJs should be appointed by neither the President or an agency head, even if the courts eventually conclude they are “officers.” In particular, Professor Barnett contends that executive branch appointment of agency adjudicators creates such a significant threat to ALJ impartiality that due process considerations may require a court of law such as the D.C. Circuit—rather than the executive branch—to appoint ALJs. This essay refutes those concerns. Tying together legal scholarship on due process and the Appointments Clause, this essay contends: The Article II clause that vests executive power in the President, as well as the text and drafting history of the Appointments Clause, together mandate that agency adjudicators must be appointed by executive branch actors—not by courts of law. As long as these adjudicators handle issues properly resolved through executive adjudication as a historical matter, there are no constitutional partiality concerns with the executive branch appointment—or even removal—of agency adjudicators. Rather, the transparency protections of the Appointments Clause provide the appropriate constitutional mechanism for accountability in executive adjudication.


Adam White: Justice Scalia's Soulcraft as Statecraft
Michael Ramsey

Adam J. White (Hoover Institution) has posted Justice Scalia's Soulcraft as Statecraft on SSRN.  Here is the abstract: 

In December 1986, just three months after his appointment to the Supreme Court. Justice Antonin Scalia explored the relationship between law, his Christian faith, civic virtue, and republican government. Three decades later, we can find the themes that he explored in those brief (and long-overlooked) remarks resonating through many of his subsequent judicial opinions, articles, and speeches. 

Taking those writings together, we see the foundation for Justice Scalia's view of constitutional law and the work of judges in our constitutional system — and the crucial role that education must play in sustaining the virtues that undergird and sustain republican government.

This essay was written for a December 2016 workshop on Scalia and education, organized by Prof. Paul E. Peterson, for the Harvard Kennedy School's Program on Education Policy and Governance. It was later published in two versions: as an essay in the Fall 2017 issue of National Affairs, and as a chapter in "Scalia's Constitution: Essays on Law and Education," edited by Paul E. Peterson and Michael McConnell (2017).


Mark Frassetto: The First Congressional Debate on Public Carry and What It Tells Us about Firearm Regionalism
Michael Ramsey

Mark Anthony Frassetto (Everytown for Gun Safety) has posted The First Congressional Debate on Public Carry and What It Tells Us about Firearm Regionalism on SSRN. Here is the abstract:

In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia’s public carry law in the 1890s. These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no national consensus regarding a right to public carry under the Second Amendment. This is important because the Supreme Court in Heller stated that the Second Amendment “codified venerable, widely understood liberties.” Second, the Senators’ and Congressmen’s varied positions on the Second Amendment and the permissible scope of public carry regulations generally fell into regional patterns. Representatives of states in the North and West supported a more limited public carry right, while those representing states in the Deep South, with some exceptions, supported a broader Second Amendment right. Because the Northern Republicans were the ideological force behind the drafting and ratification of the Fourteenth Amendment, their restrictive view of public carry should be given special weight when determining the constitutionality of contemporary public carry regulations.

I have some doubts about the relevance of debates from the 1890s on the original meaning of the Fourteenth Amendment.  But I have become a little less doubtful after studying Justice Scalia's originalist methodology, which gave more weight to distant post-ratification evidence than one might expect (see here).


A Lot More from Carissa Byrne Hessick on Corpus Linguistics
Michael Ramsey

At Prawfsblawg, Carissa Byrne Hessick: Corpus Linguistics Re-Redux.  A long post, it begins:

Since my last post on Corpus Linguistics two weeks ago [ed.: noted here], several things have happened in the corpus linguistics world that I’d like to discuss:  Stephen Mouritsen posted a significant and substantive response to several of my questions.  (His response can be found in this thread, and it is dated September 20).  Neal Goldfarb wrote two lengthy and important posts on his blog [ed.: noted here and here]. And a new corpus linguistics paper about the likely meaning of the word “emolument” as it is used in the Constitution was posted on SSRN [ed.: noted here].  All three of these things have helped me further refine my views on corpus linguistics.  But I remain deeply concerned about using corpus linguistics as a methodology to interpret criminal statutes.

First, let me begin by saying that many law professors have not yet made up their minds about corpus linguistics.  They haven’t made up their minds because it is not clear what corpus linguistics and the law aims to do.  A number of people—especially those who consider themselves textualists—tell me that they see corpus frequency analysis as potentially useful for identifying possible or permissible meanings of an otherwise unclear statutory term.  But that is not what those who are advocating for corpus linguistics in the law say.  They tell us that, while dictionaries can help us identify permissible meanings, corpus linguistics can do more.  Specifically, they say it can help judges identify the ordinary or plain meaning of the statute.  In fact, they (at least occasionally) tell us that the frequency with which a word is used a particular way is information that *must* be taken into account in determining the ordinary meaning of a statutory term.

Plus interesting reactions in the comments from, among others, Ian Bartrum, Asher Steinberg and Neal Goldfarb.  And don't miss Asher Steinberg's earlier comments at Neal Goldfarb's blog (via this link).


Jed Shugerman Apologizes to Tillman and Blackman (Updated)
Michael Ramsey

At Take Care Blog, Jed Shugerman (Fordham): An Apology to Tillman and Blackman. Re-posted in full, because it deserves to be: 

On Tuesday evening, I received the proposed response by Seth Tillman and Josh Blackman explaining their treatment of the Hamilton “Condensed Letter.” I am writing separately from my co-authors on our amicus brief to offer my appreciation for the hard work by Tillman and Blackman to produce these experts’ reports, and I write to offer them an apology.

I welcome amicus’s introduction of these scholars and their interpretations. I have great respect for their expertise and their analysis. I am satisfied that Tillman and Blackman have provided support for their perspective on these documents. I note that we found the “Condensed Letter” in the archives only six weeks ago, and I will continue to examine it in light of these experts’ reports. There is much more to the arguments about the Emoluments Clauses, and I look forward to engaging them in future briefs.

Most importantly, I offer them a public and personal apology for my public questioning of their claims. I was wrong to suggest that Tillman misused sources, and I was wrong to question his credibility. I take full responsibility for my Aug. 31st blog post, which was my work alone, and solely my error in judgment. Even if my questions were reasonable and posed in good faith, I regret that I did not ask these questions by email to give Tillman an opportunity to respond directly. Tillman is a diligent, creative, intelligent, and learned scholar who deserved more respect than the way I handled these exchanges. I’m sincerely sorry for any trouble or hardship I caused for Mr. Tillman and his family.

Background on the Tillman/Blackman filing and related controversy is here.   

All scholars make mistakes at time.  The question is what comes after.  Professor Shugerman (whom I don't know personally) shows an honest and courageous way.  There's a lot to be learned from this episode.

UPDATE:  It makes the New York Times ... Adam Liptak: ‘Lonely Scholar With Unusual Ideas’ Defends Trump, Igniting Legal Storm. Despite the headline, generally complementary to Professor Tillman, including:

Five legal historians, including Professor Shugerman, filed their own friend-of-the-court brief. They said Mr. Tillman’s had “incorrectly described” the evidence in a footnote in his brief.

Mr. Tillman took none of this lightly. In a sworn statement last week, he repeated his original position. “I stand entirely behind the above footnote: behind every sentence, every phrase, every word and every syllable,” he wrote. “I made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything.”

Mr. Tillman, who is represented by Josh Blackman, an energetic law professor and litigator, rounded up declarations from experts in founding-era documents and on Hamilton. They agreed that the document said to contradict Mr. Tillman’s account was not signed by Hamilton and was prepared after his death.

I asked Mr. Tillman’s critics for their reactions. Professor Shugerman responded with “a public and personal apology.”


Professor Shugerman’s fellow historians — John MikhailJack RakoveGautham Rao and Simon Stern — said they were still studying the matter.

At Instapundit, Glenn Reynolds comments:  "The last time so many legal historians embarrassed themselves was when they defended fraudulent legal historian Michael Bellesiles."

RELATED:  Professors Blackman and Tillman are guest-blogging at Volokh Conspiracy.  Here is their first post: The Emoluments Clauses litigation, Part 1: The Constitution’s taxonomy of officers and offices.


Stephen Mortellaro: The Unconstitutionality of the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications
Michael Ramsey

Stephen E. Mortellaro (George Washington University Law School) has posted The Unconstitutionality of the Federal Ban on Noncitizen Voting and Congressionally-Imposed Voter Qualifications (63 Loy. L. Rev. (2017, Forthcoming)) on SSRN. Here is the abstract:

Congress strikes at the core of state sovereignty when it disenfranchises voters. Yet demands for national disenfranchisement laws have become pervasive since the 2016 election, and Congress has a ready model: a federal statute prohibiting noncitizens from voting in federal elections. Despite upending centuries of state control over voter qualifications, this statute remains unchallenged in court and unexamined in academia; its constitutionality has been assumed. This article challenges this assumption, arguing that the federal ban on noncitizen voting—along with every other voter qualification Congress may impose—unconstitutionally infringes state sovereignty.

Most voting rights scholarship focuses on the constitutional amendments that prevent disenfranchisement based on race, sex, wealth, and age. This article demonstrates how the Constitution limits the federal government even further. By tracing the history of the Elections Clause and analyzing contemporary election law jurisprudence, this article shows how Congress’s traditional sources of authority over federal elections do not empower it to impose substantive qualifications on voters. More fundamentally, examination of the text and history of the Voter Qualifications Clauses reveals that states possess an exclusive power to determine who is ineligible to vote. This analysis makes evident that all congressionally-imposed voter qualifications—even those that do not invidiously discriminate—cannot survive the constraints of American federalism.


A Lot More from Neal Goldfarb on Corpus Linguistics
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb: Meaning in the framework of corpus linguistics.  From the introduction:

At the end of my previous post discussing Carissa Hessick’s paper “Corpus Linguistics and the Criminal Law,” I said that I would follow up with another post “making the affirmative case for the relevance of frequency data in determining ordinary meaning.” This is that post.

Given that subject, you might wonder why I’ve titled this post “Meaning in the framework of corpus linguistics.” The answer is that corpus linguistics has not only provided a methodology for investigating meaning, it has also generated important insights about word meaning. (That was the subject of the paper I presented at the BYU symposium in February, which will be published, along with the other papers from the symposium, in a special issue of the BYU Law Review.) I’ll draw on those insights when I talk about frequency analysis, and I thought it would be helpful to make them explicit.

(A lengthy post that's not possible to excerpt meaningfully).

Via Larry Solum at Legal Theory Blog, who highlights this passage from Goldfarb:

ONE OF THE PREMISES of the usage-based approach to word meaning, in both corpus-based analysis and traditional lexicography, is that the patterns of actual usage constitute the subject of inquiry—the raw data to be analyzed—and that those patterns provide evidence of the various meanings that a word is used to convey. And in fact, actual usage does more than simply provide evidence of a word’s meaning(s), it determines those meanings. To state it differently, word meaning arises from usage.

And he adds: "This point is absolutely crucial to understanding the role of corpus linguistics in determination of the meaning (communicative content) of legal contexts.  The post is deeply informed and must reading."

Bonus:  An "epic comment" (Goldfarb's description) by Asher Steinberg on Goldfarb's post; it begins:

I want to apologize at the outset for leaving a comment about a third as long as your post [ed.: a very long post!], but as you say, these are interesting times and like Professor Hessick I am afraid that statutory interpretation is about to fall into fundamental error over the course you suggest. I will just focus on your findings on humans carrying objects, which seems like an object case for this approach. None of those findings do anything for me, for a few reasons. ...


Asher Steinberg on the President and Foreign Emoluments
Michael Ramsey

At The Narrowest Grounds, Asher Steinberg: The Textual Argument That the President Does Not Hold an "Office Under the United States".  A thorough, detailed and yet readable summary of the argument that underlies the Tillman/Blackman position in the foreign emoluments litigation.  From the introduction:

I was very skeptical indeed of Tillman's position [that the President does not hold an "Office under the United States"] at first, the necessary consequences of which include: (a) that Presidents and members of Congress are not covered by the Foreign Emoluments Clause, (b) that the Incompatibility Clause, which prohibits officers under the United States from serving in Congress, does not prevent the Speaker of the House or Senate Majority Leader from simultaneously serving as President, (c) that the President can be a member of the Electoral College notwithstanding the Elector Incompatibility Clause, which prohibits officers under the United States from serving in the Electoral College, and (d) that Congress can not prevent an impeached official from running for the Presidency, notwithstanding the Disqualification Clause, which allows Congress to disqualify impeached officials from serving in any office under the United States.  These seem like fairly odd rules, and I happen to be someone who believes that oddity is a cognizable constitutional-interpretive consideration, both by way of gauging what the Constitution was likely intended to mean by its drafters or understood to mean by its ratifiers, and as a perfectly legitimate freestanding consideration of its own.

However, as I reviewed the drafts of Tillman and Blackman's brief and read the various responses to Tillman's articles that have been written over the years by some of the academy's leading originalists, most of which were sharply critical, I began to become convinced not only that there is a very serious textual argument for Tillman's position, but that it was difficult to see what an adequate textual rejoinder would look like.  None, I believe, has yet been offered.  

I do not think this textual argument is entirely made or entirely clear in Tillman's brief or perhaps even in his articles, which dwell as much on historic practice and pre-framing usage of related phraseology as on text and pulls several textual punches.  Unlike the brief's authors, or many originalists, I am not someone who attaches profound importance to who Hamilton listed as an officer under the United States in 1793, or whether then-President Jefferson accepted a bust of the Czar of Russia without asking for permission from Congress.  These instances of practice seem to me, at best, indicia of what a couple high-ranking officials made of the Constitution near its ratification, no more or less weighty than the EPA Administrator and her deputy's near-contemporaneous understanding of the Clean Air Act—information in which the connoisseurs of Tillman and Blackman's sort of argument tend to have little to no interest.  I am, however, interested in constitutional text, especially a part of the Constitution's text as little-interpreted as this one, and I think any reader will agree that under normal, humdrum rules of textual interpretation, Tillman's initially counterintuitive claim that the President does not hold an office under the United States is at least a highly permissible reading of the text if not indeed the best.

Extensive and persuasive discussion follows.

And in conclusion:

My intention here has not been to provide anything like a conclusive argument that Presidents are (at least as a textual matter) not officers under the United States.  My intention, rather, has only been to show that there is a strong argument that they are not that needs to be taken far more seriously than it has been, not just because Hamilton prepared a report that supports the view or because Tillman's critics have made spurious claims about the historical record or Tillman himself, but because the text of the Constitution tends to support it.  

I sincerely believe that much work remains to be done in this regard, precisely because so much of the literature and briefing taking the position that Presidents are officers under the United States has been so peremptory.   The weakness of that side of the literature, in my view, is not necessarily a sign of a weak position so much as it is a function of the position's strong intuitive appeal, both in a casual plain-language sense and as a matter of policy, such that the position has seemed too obvious until now to need much defense from a lone scholar.  My hope in writing this post has been to at least help dissolve the sense that the Presidency's status as an office under the United States is beyond debate, so that scholars, researchers and lawyers inclined to support that proposition can begin the textual and historical work of explaining why it is correct, and so that scholars, researchers and lawyers who come to this question in a spirit of genuine inquiry can continue the work that Professor Tillman has so ably started.

(Via How Appealing).

RELATED:  Josh Blackman has additional thoughts here: The Early Days of the Obamacare and Emoluments Clause Litigation.  On the amicus effort in the emoluments litigation he says:

While most scholars never even considered the Foreign Emoluments Clause, and who holds “Office . . . under the United States” before November 2016, Seth Barrett Tillman has been studying these areas for nearly a decade. Long before Donald Trump was President, he wrote consistently that the language used in the Foreign Emoluments Clause does not apply to elected positions, like the President or members of Congress. He wrote that President Barrack Obama could keep his Senate seat, and a Vice President Ryan could keep his House seat. The most cursory inspection of Seth’s record demonstrates that this is not an ideological or partisan project. He has been a consistent scholar on this point for years. Further, Seth persuaded me on that question some time ago, long before President Trump was even a figment of my imagination. That is why I have devoted considerable time and effort in this litigation. Working closely with Seth has been one of the most rewarding experiences of my career.

This brief has nothing to do with Donald Trump or his business interests. Rather, as a friend of the court, we seek to provide a stream of authority about the text and history of the Constitution that neither of the parties have advanced. 


Was Justice Scalia an Old Originalist?
Mike Rappaport

One of the standard distinctions these days is between the old originalism and new originalism.  While different people define the distinction a little bit differently, I define the old originalism as having two essential characteristics: using “original intent” to determine the original meaning of a provision and a belief that significantly constraining judges is essential to the task of originalism.

The newer originalisms – I use the term “newer originalisms” rather than the “new originalism” because new versions of originalism differ from one another – have abandoned these two characteristics.  The newer originalisms tend to focus on the original public meaning – focusing on a more textual than intentionalist approach.  And the newer originalisms no longer hold (or act like) significantly constraining judges is essential.  If the original meaning is permissive – if it is unclear, vague, or delegates power to judges – then that is the original meaning and newer originalists generally believe it should be followed.

Given these definitions, how should we classify Justice Scalia?  On the one hand, Scalia was perhaps the most important person responsible for the shift from original intent to original public meaning.  Thus, he deserves a significant place among those responsible for the newer originalisms.

On the other hand, Scalia placed a very strong value on constraining judges.  And it is a common criticism of the Justice that he often preferred clear rules to the original meaning, when that original meaning might have been unclear.  I mentioned one example in my prior post on the nondelegation doctrine.  Another example is Justice Scalia’s decision to refuse to join Justice Thomas’s decision in McDonald concluding that incorporation of the Second Amendment occurred under the Privileges or Immunities Clause rather than the Due Process Clause (which had been “fixed” through precedent).  On this score, then, Scalia stands as an old originalist.

One possible way of reconciling clear rules with the original meaning is to assume (in cases of ambiguity) that the Framers would have preferred a meaning that was clear over one that was unclear.  There is something to be said for this, but at most I believe it supports a weak inference.  And Scalia rarely, if ever, made this argument.

Thus, Scalia stands somewhere between the old originalism and the newer originalisms.  He is something of a transitional figure, who established one innovation but retained the traditional theory in other ways.