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34 posts from September 2017


Charles Barzun: Justice Souter's Common Law
Michael Ramsey

Charles L. Barzun (University of Virginia School of Law) has posted Justice Souter's Common Law (Virginia Law Review, forthcoming 2018) on SSRN.  Here is the abstract:

The first-year law-school curriculum aims to teach students the “common-law method.” But exactly what sort of judicial reasoning that method permits and requires has long been the subject of debate. There are multiple models of common-law reasoning, not just one. This Article identifies one such model that legal scholars have yet to recognize as a distinct theory of common-law adjudication. It is an approach I ascribe to former Justice David Souter.

Seeing Justice Souter as a common-law judge is hardly novel; it is the conventional wisdom about him. But in my view Souter’s understanding of the process of case-by-case adjudication reflects deeper philosophical commitments – and, for that reason, carries with it more radical implications – than has been appreciated. To support this claim, I compare Souter’s understanding of the common law to two better known rivals – Ronald Dworkin’s “law as integrity” and Judge Richard Posner’s legal pragmatism. I then show how each of the three models flows from its own more general model of practical reasoning. 

The upshot of the comparative analysis is a clearer view of a model of common-law reasoning that combines elements of the other two but that rejects an assumption common to them both. Like Dworkin’s, Souter’s model sees legal principles embodied in case law; but like Posner’s, it is empiricist and pragmatist in spirit. It can coherently combine these elements only because, unlike either of its rivals, Souter’s model treats factual and evaluative forms of reasoning as continuous with each other, rather than dichotomous. In rejecting the fact/value dichotomy, Souter accords a much greater role to history in common-law reasoning than do either Posner or Dworkin. The result is an understanding of common-law adjudication that is at once more traditional and more radical than either of its more famous rivals. I examine that more radical dimension at play in some of Justice Souter’s most famous and controversial opinions, including the joint opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey.

In comparing the Souter approach to originalism, a key question is whether Souter's approach actually imposed any constraints, or whether it merely justified results consistent with the Justice's intuitions.  If the latter, it's really just a version of living constitutionalism, like the Posner and Dworkin varieties.  If the former, it could be a legitimate "third way" alternative to the originalism/living constitutionalism debate.

(But I think it was the latter).


Justice Scalia and the Nondelegation Doctrine
Mike Rappaport

This article explores the tensions between Justice Scalia’s originalism and his lenient approach to the nondelegation doctrine.  While I have only skimmed the piece, it appears to tell a story similar to the one that I would.

Justice Scalia wrote two significant opinions on the nondelegation doctrine – the doctrine that places limits on Congress’s power to delegate legislative power to executive branch agencies.  One was his concurring opinion in Mistretta v. United States.  In Mistretta, Scalia held that the delegation to the Sentencing Commission of the power to announce binding Sentencing Guidelines was unconstitutional.  While Scalia was the only Justice who would have struck down the delegation, his argument was almost entirely focused on the unusual powers of the Sentencing Commission.  Unlike other agencies, it did nothing else besides promulgating these guidelines.  Thus, it was a junior varsity Congress.

By contrast, Scalia’s argument would not condemn other agencies, because they also did other things, which were executive.  So the EPA both enforces the environmental laws and passes regulations under those laws. Thus, it avoids Scalia’s condemnation of the Sentencing Commission as a junior varsity Congress.  Every year, my students are confused by Scalia’s opinion.  They think he is tough on delegations to agencies.  But he is not.  Every other agency delegation passes the test.

What about the fact that Congress might be conferring broad discretion to an agency to write regulations?  Scalia addressed this by saying the distinction between excessive discretion and constrained discretion could not be drawn.  It was a distinction of degree, not of kind.  Thus, he would not enforce it, leaving it to constitutional structure as a kind of political question.

The second Scalia opinion was Whitman v. American Trucking.  Unlike Mistretta, Scalia was writing for the entire Court this time, and so his opinion was different.  This time Scalia appeared to apply the precedents, claiming that these delegation precedents allowed ample discretion to be conferred on agencies.  And he was correct – they did allow ample discretion – although Scalia wrote the opinion in a way that appeared to embrace the ampleness of the allowable discretion, rather than to discourage it.

Scalia never addressed the original meaning on this subject, and thus his opinions are open to serious criticism.  Perhaps Scalia would have found the precedents overrode the original meaning, but he never addressed the argument.  And one gets the impression, from Scalia’s Mistretta opinion, that he liked the precedents.  They allowed him to avoid the difficult task of distinguishing between permissible and impermissible delegations, something that would have required judges to draw unclear lines.  Scalia hated having judges engage in such a task.

Contrast Scalia here with Justice Thomas.  In American Trucking, Justice Thomas concurred, noting that he doubted the precedents were consistent with the original meaning and that he was willing to reexamine the constitutionality of the lenient nondelegation doctrine in a suitable case.

Some years later, in Department Of Transportation. v. Association Of American Railroads, Justice Thomas wrote a long opinion for himself articulating what he believed the proper approach to nondelegation was.  It is hard to imagine Justice Scalia joining this opinion, which would hold many current delegations to be unconstitutional. Unfortunately, though, Justice Thomas does not really solve or even seriously address the problem that so troubled Justice Scalia – distinguishing between permissible and impermissible delegations in a principled way.

Tillman and Blackman Strike Back on Emoluments [Updated]
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) has posted The Reports of My Death Were Greatly Exaggerated: Tillman Responds to the Legal Historians Amicus Brief in CREW v. Trump (United States District Court for the Southern District of New York) on SSRN.  Here is the abstract:

In an amicus brief (supporting Defendant President Trump) submitted to this Court (Southern District of New York), my counsel included the following footnote: 

See Report on the Salaries, Fees, and Emoluments of Persons Holding Civil Office Under the United States (Feb. 26, 1793), in 14 The Papers of Alexander Hamilton (“PAH”), 157, 157–59 (1969), perma.cc/49RT-TTGF. The editors of PAH marked this document “DS,” meaning “document signed,” which indicates that this document was the original signed by Hamilton. The original Hamilton-signed document, on which the PAH reproduction is based, remains in the vaults of the National Archives & Records Administration (Record Group #46). An excerpt of the original Hamilton signed document is available at bit.ly/2rQCDxX. Amicus notes that an entirely different document (but bearing a similar name) can be found in American State Papers (“ASP”). See List Of Civil Officers Of The United States, Except Judges, With Their Emoluments, For The Year Ending October 1, 1792, in 1 American State Papers/Miscellaneous 57 (1834). The document in ASP was not signed by Hamilton. The undated ASP document was drafted by an unknown Senate functionary. Unlike Hamilton’s manuscript, the record in ASP includes the President and Vice President. Both documents are probative of the legal meaning of Office . . . under the United States as used in the Senate order. But the two documents are not equally probative. 

I stand entirely behind the above footnote: behind every sentence, every phrase, every word, and every syllable. I have made no mistake, intentional or inadvertent. I retract nothing, and I do not intend to retract anything. 

Recently, my amicus brief and scholarship has been criticized by the Legal Historians Brief, other academics, some litigators, and by the press. Here I respond. This document is my declaration submitted as an exhibit to a motion responding to the Legal Historians Brief.

The full motion, to which the above document is an exhibit, is here: Amicus Curiae Scholar Seth Barrett Tillman's and Proposed Amicus Curiae Judicial Education Project's Motion for Leave to File Response to Amici Curiae by Certain Legal Historians (filed by Robert Ray [Thompson & Knight], Josh Blackman [South Texas Law School] and Carrie Serevino [Judicial Education Project]).  It begins:

On June 16, 2017, undersigned counsel for Amicus Curiae scholar Seth Barrett Tillman submitted a motion for leave to file an amicus brief on behalf of Tillman [ECF No. 37] in support of the Defendant, which the Court granted on June 28, 2017 [ECF No. 39]. On August 11, 2017, several Legal Historians filed a motion for leave to file an amicus brief in support of the Plaintiffs [ECF No. 70], which this Court granted on August 15, 2017 [ECF No. 73]. ...

 The Legal Historians allege that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material” [ECF No. 70-1, p. 22 n.80]. Counsel for Plaintiffs has endorsed this allegation. Because the authenticity and provenance of this document bears directly on the question of whether the President holds an “Office . . . under the United States,” and on the meaning of the Foreign Emoluments Clause, Tillman and proposed amicus JEP respectfully request leave to respond to this allegation. The proposed response, along with supporting Exhibits A–R, which are attached hereto as Exhibit 1, demonstrate that the Legal Historians are plainly wrong. The so-called “key Hamilton manuscript” was not signed by Alexander Hamilton, but rather is a scrivener’s copy drafted a
generation later.

And further:

In 1792, Alexander Hamilton was directed by the Senate to provide a list of the “emoluments” of “every person holding any civil office or employment under the United States.” He sent a response in 1793, which we refer to as The Complete Report. It did not list the President, Vice President, or other elected officials. The 1793 Complete Report is a contemporaneous construction of substantially the same language at issue in the Constitution’s Foreign Emoluments Clause. There is a second document: The Condensed Report. That document was drafted based in large part on The  Complete Report. The Tillman Amicus (“Amicus”) brief explained that this latter report was not signed by Alexander Hamilton, it was not dated, and it was drafted by an unknown Senate functionary. In other words, its precise provenance remains unknown in the sense that we simply cannot identify the specific person who drafted it.

The Brief of Amicus Curiae by Certain Legal Historians contends that Tillman’s “brief overlooks a key Hamilton manuscript that undercuts its thesis and belies its description of archival material.”  The Legal Historians allege that that The Condensed Report was signed by Hamilton and it is equally authentic with the original document, The Complete Report.  The Legal Historians Brief is plainly wrong. The Condensed Report is nothing more than a scrivener’s copy of The Complete Report, drafted after Alexander Hamilton’s death. In ruling on whether the President holds “Office . . . under the United States,” this Court should rely on The Complete Report, which was signed by Hamilton, and not the unsigned and undated Condensed Report.

As the brief indicates, this filing is in response to a series of attacks (in court and out, some of them noted on this blog [see here]) challenging Professor Tillman's initial description of the Hamilton documents.

Here is my post on the original Blackman/Tillman amicus.  That brief argues that the emoluments clause, Article I, Section 9,  does not apply to the President because the presidency (like other elected positions) is not an "office of Profit or Trust under [the United States]" as specified by the clause.  Hamilton is said to have agreed -- or not, depending on which document one favors.

I don't have an opinion on the merits (except that Professor Tillman and his counsel Professor Blackman, both of whom I know personally, sound very confident, and they are scholars I hesitate to disagree with).  My interest is principally the extent to which the plaintiffs, their counsel, and their academic supports, have become extraordinarily focused on the originalist arguments in this litigation, to the extent of near-obsession with what strikes me as a pretty obscure document even by originalist standards.  If originalism were just a quirky outlier in constitutional argumentation (as various people asserted during the Gorsuch hearings), it really should not matter if Professor Tillman is right about this obscure document.  That the plaintiffs' side has become so obsessed with it shows, to my mind, that they know originalist arguments have force -- especially in an area where there is no Supreme Court precedent -- and they are afraid of the Tillman/Blackman argument.

UPDATE: At his blog, Josh Blackman has more excerpts and strongly worded commentary: New Filings in the Emoluments Clause Litigation.  He begins:

The litigation concerning the Foreign Emoluments Clause demands a careful study of the text and history of the Constitution. The Plaintiffs and their amici (including a group of self-styled “Legal Historians”) have attempted to discredit the amicus brief I filed on behalf of Seth Barrett Tillman. On the blogosphere and in filings with the Southern District of New York, they charged that we mislead the court about a document called The Condensed Report. They assert that The Condensed Report was signed by Alexander Hamilton, but because it undercuts our theory, we misled the court about its provenance.

Had the Plaintiffs and their amici asked an actual expert who specializes in the field of authenticating founding-era documents (we asked two), they would have learned rather quickly that this document was not signed by Alexander Hamilton. And had the Plaintiffs and their amici asked an actual expert who specializes in the works of Alexander Hamilton (we asked three), they would have learned that the document was drafted after Hamilton’s death.

And further:

One of our experts is John P. Kaminski. He has has been editing The Documentary History of the Constitution since 1969 and his work has been cited by the United States Supreme Court as well as by Plaintiffs and their Amici. (I hope they do not attempt to attack an expert that the Constitutional Accountability Center and Laurence H. Tribe previously cited). Kaminski agreed with Amicus-Tillman concerning the provenance of The Complete Report (which was signed by Hamilton) and The Condensed Report (which was not). Here are excerpts from his affidavit that demonstrate the embarrassing error made by Plaintiffs and their Amici:

15. Historical documentary editors regularly face the task of identifying the authorship and dating documents in determining what documents to publish in their volumes, what documents should be relegated to annotation, and what documents should be excluded altogether. I have been making these kinds of decisions for almost fifty years. After examining the two reports, it seems clear to me that one interpretation is possible. I agree with the editors of the Hamilton Papers that The Complete Report is an original Hamilton document while The Condensed Report is a later copy.

16. Both lengthy reports were written by scriveners. The Complete Report was signed by Alexander Hamilton himself. I base this opinion in substantial part on my professional judgment as to what Hamilton’s signature looked like. The Condensed Report also contains the words “Alexander Hamilton” where a signature might appear, but this “signature” was clearly not written by Hamilton himself. Rather, the words “Alexander Hamilton” were written by the same scrivener who transcribed The Condensed Report. Endorsements or marginalia on both documents assist in determining the genesis of The Condensed Report. The markings on The Complete Report in pencil indicate that the report was “To be condensed & printed. See page Journal 441 & 497.” The page numbers refer to the relevant dates of 7 May 1792 and 27 February 1793 located in the 1820 printed edition of the U.S. Senate Journal published by Gales & Seaton. The back of The Condensed Report is docketed: “2 Cong No. 34 2 Sess. Condensed.” Beneath the word “Condensed” appears: “Report from Secretary of the Treasury with names & compensation of all Officers in the civil employ of the Government, 1793 Feb 27—Series 10 No. No. [sic] 34 Miscellaneous.” A separate notation indicates: “Condensed by Order of the Secretary of the Senate.”

17. These markings clearly indicate that sometime after 1820 (probably near 1833), the Secretary of the U.S. Senate ordered that a condensed version of The Complete Report be made. Transcribed by a clerk of the Senate, The Condensed Report was then printed in the first miscellaneous volume of American State Papers, published in 1834. Hamilton was long since dead by 1820. Thus Alexander Hamilton had no direct connection with The Condensed Report.

The Plaintiffs and the Legal Historians have made a serious mistake by failing to distinguish between an authentic document and a copy that was drafted a generation later. This error was not an errant mistake in a scholarly journal, but one reviewed and vetted in a court pleading. And it was one designed solely to attack Tillman’s credibility.

And a challenge to the Legal Historians:

But the scholars who joined the Legal Historians brief have to make an important decision about whether to retract this claim [regarding Hamilton's signature on the second document] ... and whether they should put their names on future briefs in this litigation–especially those they did not personally write. The Legal Historians are Professor Jack N. Rakove (Stanford University, Department of History), Professor Jed Handelsman Shugerman (Fordham Law School), Professor John Mikhail (Georgetown University Law Center), Professor Gautham Rao (American University, Department of History), and Professor Simon Stern (University of Toronto).

A further thought: To me this episode indicates how originalism can get beyond concerns over "law office history" (and, as my colleague Mike Rappaport has called it, "history office law").  Exploring the original meaning is a dynamic and adversarial process, whether in litigation or in scholarship.  The project does not turn on the adequacy of any particular contribution. The hope is that the sum of the contributions will lead to a clearer understanding.


The Legislative History of the Fourth Amendment: Unreasonable Searches and General Warrants
Mike Rappaport

The Fourth Amendments has two main clauses: a rights clause and a prohibition on certain types of warrants clause (the prohibition clause):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Significantly, the two clauses are separated by an “and.”  This “and” has led to an uncertainty about the relationship between the two clauses. Some people argue that searches and seizures without warrants are unreasonable, except in limited circumstances.  Others argue that searches and seizures do not require warrants under any circumstances.  Instead such warrants were used as a defense by government officials against tort claims for illegal searches and therefore were restricted to certain situations.

Interestingly, the original version of the Fourth Amendment did not have this structure.  James Madison’s proposed version of what would become the Fourth Amendment provided:

The rights of the people to be secured in their persons; their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

Madison’s provision only provides protection from certain kinds of warrants – the protection provided by the prohibition clause.  While it includes the language of the rights clause, this language does not confer that right independently.  Instead, Madison’s provision merely states that the right can be violated by violating the prohibition clause.  In fact, the rights clause narrows the scope of the prohibition clause by limiting it to “persons, houses, papers, and other property.”

One possibility for Madison’s provision was that it sought to work a compromise between two views of the right at issue.  The Massachusetts Constitution of 1780 provided for both the rights clause and the prohibition clause: “Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right” if they do not satisfy the various requirements in the prohibition clause.

By contrast, the Virginia Declaration of Rights provided only for the prohibition clause.  Madison, a Virginian, might have sought to work a compromise, which would have operated much like the Virginia Declaration.  Instead, the Amendment was changed to follow the Massachusetts provision.

James Cleith Phillips & Sara White on Corpus Linguistics and Foreign Emoluments
Michael Ramsey

James Cleith Phillips (J.D., University of California, Berkeley, School of Law; Ph.D. candidate, Jurisprudence & Social Policy, UC-Berkeley) and Sara White (M.A., Brigham Young University, linguistics; BYU, J. Reuben Clark Law School, Law and Corpus Linguistics Research Fellow) have posted The Meaning of the Three Emoluments Clauses in the U.S. Constitution: A Corpus Linguistic Analysis of American English, 1760-1799 on SSRN.  Here is the abstract:

The recent flurry of scholarship seeking to understand the meaning of the emoluments clauses of the Constitution, particularly the Foreign Emoluments Clause, in the wake of President Trump’s election and subsequently filed lawsuits, has relied on a host of interpretive methodologies. To the extent scholars now (and courts later) seek to understand what the term emolument(s), used thrice in the Constitution, would have meant to the founding generation, their methodologies in determining such have generally relied on small, unrepresentative samples of language usage and founding era dictionaries. But the former cannot confidently provide insights that we can generalize to the greater population (either overall or of lawyers) from the time, and the latter are simply not up to the task of determining usage patterns. Instead, corpus linguistics—what Professor Lawrence Solum had predicted “will revolutionize statutory and constitutional interpretation”—is needed to answer that question.

This paper tackles the meaning of emolument(s) in the founding era using the first (that we can find) full-blown corpus linguistic analysis of constitutional text in American legal scholarship. While at least three others (Randy Barnett, Jenn Mascott, and Joel Hood) have done corpus linguistics-like analysis in constitutional interpretation, none have used all of the tools of a corpus (collocation, clusters/n-grams, frequency data, and concordance lines) and used a sufficiently large and representative corpus of the relevant time period—here the underlying data of the soon-to-be released Corpus of Founding Era American English (COFEA)—to make confident conclusions about probably founding-era meaning.

The article does not discount other methodologies of constitutional exegesis; nor does the article claim to prove the meaning of any of the Constitution’s invocation of the word emolument, only make some meanings more probable than others; nor does the article take sides on whether the President has violated the Constitution. But the article does add another piece to the emolument puzzle, and provides a more rigorous, relevant, transparent, and accurate methodology than scholars have so far employed in investigating the original public meaning of the various emoluments clauses. In sum, this article is narrower than most on the topic, but within that niche it dives deeper than any have so far gone.

This paper finds that the Congressional and Presidential Emoluments Clauses would have most likely been understood to contain a narrow, office or public-employment sense of emolument. But the Foreign Emoluments Clause is more ambiguous given its modifying language “of any kind whatever.” Further research into that phrase is needed.


John McGinnis on Originalism and Amendments
Michael Ramsey

At Liberty Law Blog, John McGinnis: How Originalism Energizes the Amendment Process.  From the introduction: 

In a recent post Mark Pulliam has nicely observed that the amendment process itself makes the Constitution a living document, capable of responding to new circumstances.   But  defenders of  living constitutionalism as an interpretive theory do have a response to this  position. They have argued that the amendment process is just too stringent and must be supplemented by judicial updating. Mike Rappaport and I have provided two interrelated arguments about why these theorists are wrong, thus bolstering Mark’s position. ...

RELATED:  Also from John McGinnis: Scalia’s Reading Law Reflects the Rise of Formalism and the Language of Law.  A key point: 

Reading Law has one important flaw.  Scalia and Garner do not identify adequate criteria for determining what is a valid canon. But it is essential to do so if we are to apply canons consistently to the Constitution. In our view, the interpretive rules for the Constitution of 1789 are those that were deemed applicable at the time. Thus, originalists must research the relevant interpretive rules in 1789 no less than they must investigate the meaning of the terms at that time.  And just as interpreters should choose the better meaning of a term, even if only slightly better than the alternative, so should interpreters likely embrace interpretive rules when the better view is that they were deemed applicable to a text like the Constitution.


Patrick Gallagher: The Conservative Incubator of Originalism
Michael Ramsey

Patrick F. Gallagher (University of Chicago, Students) has posted The Conservative Incubator of Originalism: The Reagan Department of Justice on SSRN.  Here is the abstract

Previous accounts of the Reagan Department of Justice’s role in promoting originalism are notably external: they either focus solely on the efforts of Attorney General Edwin Meese III or rely on evidence created well after the 1980s. This essay takes a different approach: it examines a plethora of the Department’s archival records, with particular emphasis given to the Office of Legal Policy. The revisionist narrative presented suggests that the Department served as a conservative incubator for originalism. That is, it compiled several abstract, fringe-right-wing legal theories, intellectually honed them, and repackaged them into a concrete and seemingly innocuous interpretive method that could be easily marketed to both the legal community and the public. While the intellectual origins of originalism within the Reagan Administration can largely be attributed to a small group of Administration elites (including Patrick Buchanan, John Roberts, Fred Fielding, and Meese), most of its popularization is thanks to the strategic, conservative plan crafted by Assistant Attorney General Stephen Markman and others within his subdivision, the Office of Legal Policy. Altogether, the written record helps lay to rest the notion that the Reagan Department of Justice did not purposefully imbue originalism with conservatism.

Notes: This paper was submitted in partial fulfillment of the requirements for the Master of Arts degree in the Master of Arts Program in the Social Sciences at the University of Chicago [ed.: Faculty Adviser: William Baude]. Questions, feedback, and publication inquir[i]es are welcomed via email.


Originalist Amicus Brief of David Gray, et al. in Carpenter v. United States
Michael Ramsey

David C. Gray (University of Maryland) and ten other professors have filed a Brief of Scholars of the History and Original Meaning of the Fourth Amendment as Amici Curiae in Support of Petitioner in Carpenter v. United States and posted it on SSRN.  Here is the abstract: 

Obtaining and examining cell site location records to find a person is a “search” in any normal sense of the word — a search of documents and a search for a person and her personal effects. It is therefore a “search” within the meaning of the Fourth Amendment in that it constitutes “examining,” “exploring,” “looking through,” “inquiring,” “seeking,” or “trying to find.” Nothing about the text of the Fourth Amendment, or the historical backdrop against which it was adopted, suggests that “search” should be construed more narrowly as, for example, intrusions upon subjectively manifested expectations of privacy that society is prepared to recognize as reasonable.

Entrusting government agents with unfettered discretion to conduct searches using cell site location information undermines Fourth Amendment rights. The Amendment guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches.” The Framers chose that language deliberately. It reflected the insecurity they suffered at the hands of “writs of assistance,” a form of general warrant that granted state agents broad discretion to search wherever they pleased. Such arbitrary power was “unreasonable” to the Framers, being “against the reason of the common law,” and it was intolerable because of its oppressive impact on “the people” as a whole. As emphasized in one of the seminal English cases that inspired the Amendment, this kind of general power to search was “totally subversive of the liberty of the subject.” James Otis’s famous speech denouncing a colonial writ of assistance similarly condemned those writs as “the worst instrument of arbitrary power,” placing “the liberty of every man in the hands of every petty officer.” 

Thus, although those who drafted and ratified the Fourth Amendment could not have anticipated cellphone technology, they would have recognized the dangers inherent in any state claim of unlimited authority to conduct searches for evidence of criminal activity. Cell site location information provides insight into where we go and what we do. Because this information is constantly generated and can be retrieved by the government long after the activities it memorializes have taken place, unfettered government access to cell site location information raises the specter of general searches and undermines the security of “the people.”

The signatories are David C. Gray (University of Maryland Francis King Carey School of Law); Laura Donohue (Georgetown University Law Center); Tracey Maclin (Boston University - School of Law); Danielle Keats Citron (University of Maryland Francis King Carey School of Law; Yale University - Yale Information Society Project; Stanford Law School Center for Internet and Society); Morgan Cloud (Emory University School of Law); William J. Cuddihy (Independent); Norman Garland (Southwestern Law School); Margaret Hu (Washington and Lee University - School of Law); Renee M. Hutchins (University of Maryland Francis King Carey School of Law); Luke Milligan (University of Louisville - Louis D. Brandeis School of Law); and George C. Thomas III (Rutgers Law School).

(For a somewhat contrary view see here from Orin Kerr).


Neal Goldfarb on Carissa Hessick on Corpus Linguistics
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb: Some comments on Hessick on corpus linguistics.  From the introduction: 

Up until now, the use of corpus linguistics in legal interpretation has gotten almost entirely good press—probably because almost all the press it’s gotten has come from its advocates. That situation has now changed, though, with the posting on SSRN of a paper by UNC law professor Carissa Hessick, who was one of the participants at the BYU law-and-corpus-linguistics symposium this past February. (Hessick has blogged about her paper at Prawfsblawg, here and here.) [Ed.: noted here].

The paper, “Corpus Linguistics and the Criminal Law” (pdf), argues that corpus linguistics “is not an appropriate tool” for interpreting statutes. Although it deals specifically with using corpus linguistics in interpreting criminal statutes, and Hessick’s concerns may not be as strong as to other areas of the law, much of her criticism would apply across the board. In this post I am going to discuss some of the issues that the paper raises, and if you’ve followed this blog before, you won’t be surprised to find out that I disagree with Hessick’s conclusion.

(Via How Appealing).


Tenth Circuit Originalism: Vogt v. City of Hays
Michael Ramsey

My colleague Donald Dripps points to this recent opinion from the Tenth Circuit, now on petition to the Supreme Court: Vogt v. City of Hays.  The issue is whether the 5th Amendment self-incrimination clause is violated when a statement is used at a
probable cause hearing rather than at a trial.   The court  (in an opinion by Judge Bacharach, joined by Judges Hartz and McHugh) said yes, with a heavily originalist analysis -- I quote at some length to give a sense of the originalist emphasis (footnotes and some citations omitted).

After finding no controlling precedent, the court begins with original meaning analysis:

[We conclude] that the right against self-incrimination is more than a trial right. In reaching this conclusion, we rely on

  • the text of the Fifth Amendment, which we interpret in light of the common understanding of the phrase “criminal case,” and
  • the Framers’ understanding of the right against self incrimination.

The Fifth Amendment provides that no person shall be “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V (emphasis added). The text of the Fifth Amendment does not contain

  • the term “trial,” which appears in the next two amendments, or
  • the term “criminal prosecution,” which is used in the next amendment.

… Indeed, on its face, the term “criminal case” appears to encompass all of the proceedings involved in a “criminal prosecution.”

“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning . . . .” United States v. Sprague, 282 U.S. 716, 731 (1931). To determine the commonly understood meaning of the phrase “criminal case” at the time of ratification (1791), we examine dictionary definitions from the Founding era. See Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 365 (2014); see also William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1338 n.99 (2007) (stating that contemporaneous dictionaries “obviously . . . provide some guidance to the commonly understood meaning of a particular word at the time that word was used in the constitutional text”).

The most authoritative dictionary of that era was Noah Webster’s 1828 dictionary, An American Dictionary of the English Language. See John A. Sterling, Above the Law: Evolution of Executive Orders (Part One), 31 UWLA L. Rev. 99, 107 (2000) (stating that most historians use Noah Webster’s 1828 dictionary when trying to determine the meaning of words during adoption of the Constitution); see also Charles Wood, Losing Control of America’s Future—The Census, Birthright Citizenship, and Illegal Aliens, 22 Harv. J.L. & Pub. Pol’y 465, 478 (1999) (stating that Noah Webster’s 1828 dictionary was “the first and for many years the 16 authoritative American dictionary”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U. L. Rev. 1393, 1425 (2012) (describing Noah Webster’s 1828 dictionary as “an incredible achievement” and as a “dominant” source since its publication); Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 389-90 (2014) (stating that the Supreme Court often cites Noah Webster’s 1828 dictionary as evidence of the original meaning of the Constitution, perhaps based on a belief “that the dictionary may reflect better the ways in which Americans used and understood the words in the Constitution”). Webster’s 1828 dictionary defines “case” as “[a] cause or suit in court,” stating that the term “is nearly synonymous with cause.” Noah Webster, Case, An American Dictionary of the English Language (1st ed. 1828). And the dictionary defines the “nearly synonymous” term “cause” as “[a] suit or action in court.” Id., Cause. Similarly, N. Bailey’s 1789 dictionary broadly defines “case” as a “thing, matter, question.” N. Bailey, The Universal Etymological English Dictionary, Case (26th ed. 1789).

The Founders’ understanding of the term “case” suggests that the Fifth Amendment encompasses more than the trial itself. See Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down that Wrong Road Again,” 74 N.C. L. Rev. 1559, 1627 (1996). “If the Framers had meant to restrict the right to ‘trial,’ they could have said so.” Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1014 (2003). ...

Then the court looks to history for further support:

We are aided not only by Founding-era dictionary definitions and [Supreme Court decisions] but also by the Framers’ understanding of the phrase “in any criminal case.” … 

One clue involves the changes in the Fifth Amendment from drafting to ratification. The amendment had been drafted by James Madison, who omitted the phrase “criminal case”:

No person shall be subject, except in cases of impeachment, to more than one punishment or one trial for the same offence; nor shall be compelled to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law; nor be obliged to relinquish his property, where it may be necessary for public use, without just compensation.

James Madison, Remarks in Debate in the House of Representatives (June 8, 1789) (emphasis added), reprinted in 1 Debates and Proceedings in the Congress of the United States 448, 451-52 (Joseph Gales ed., 1834); United States Congress, Debates and Proceedings in the Congress of the United States 451-52 (Washington, D.C. 1834). This language “applied to civil as well as criminal proceedings and in principle to any stage of a legal inquiry, from the moment of arrest in a criminal case, to the swearing of a deposition in a civil one.” Leonard W. Levy, Origins of the Fifth Amendment 423 (1968).

In the floor debate on whether to adopt the Bill of Rights, Representative Laurance expressed concern that Madison’s wording would conflict with “laws passed.” Statement of Representative John Laurance (Aug. 17, 1789), reprinted in 1 Debates and Proceedings in the Congress of the United States 782, 782. To avoid this conflict, Representative Laurance proposed to add the phrase “in any criminal case.” Id. Representative Laurance’s language was accepted in the House and Senate. Leonard W. Levy, Origins of the Fifth Amendment 424-26 (1968).

It is unclear which “laws” Representative Laurance was talking about. One possibility was the proposed Judiciary Act, which would allow the judiciary to compel production of documents in civil cases. Another possibility was the Collections Act, which allowed officials to require oaths in customs declarations. Act of July 31, 1789, ch. 5 section 13, 1 Stat. 29, 39-40; see Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 705 n.450 (1999). But whichever law was at risk, Representative Laurance was apparently trying to distinguish between potential criminal liability and civil liability. See Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1017 (2003) ...

When Representative Laurance proposed to confine the Fifth Amendment to a “criminal case,” there was a consensus that the right against self-incrimination was not limited to a suspect’s own trial. To the contrary, “the historical sources show that the right against selfaccusation was understood to arise primarily in pretrial or preprosecution settings rather than in the context of a person’s own criminal trial.” Id. at 1017-18. If this right were limited to one’s own trial, the right would have served little purpose, for criminal defendants were then unable to testify in their own criminal cases. See Ferguson v. Georgia, 365 U.S. 570, 574 (1961) (stating that when the United States was formed, “criminal defendants were deemed incompetent as witnesses”).

The most natural place for concern about compelled testimony would have been in proceedings outside of criminal trials, such as grand jury proceedings. See David Rossman, Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution, 26 Ga. St. U.L. Rev. 417, 488 (2010).

After adopting Representative Laurance’s language, the Senate reorganized the cluster of rights that ultimately went into the Fifth and Sixth Amendments. “In what was to be the Sixth Amendment the Senate clustered together the procedural rights of the criminally accused after indictment.” Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1013 (2003) (“[T]he Sixth Amendment plainly deals with rights that protect ‘the accused’ during the court phase of prosecutions, including trials.”). This grouping of Sixth Amendment rights omitted the right against self-incrimination, which was put into the Fifth Amendment with other rights that unambiguously extended to pretrial proceedings as well as the trial:

That the self-incrimination clause did not fall into the Sixth Amendment indicated that the Senate, like the House, did not intend to follow the implication of 23 [Section 8 of the 1776 Virginia Declaration of Rights] . . . that the right not to give evidence against oneself applied merely to the defendant on trial. The Sixth Amendment, referring explicitly to the accused, protected him alone. Indeed the Sixth Amendment, with the right of counsel added, was the equivalent of Virginia’s Section 8 and included all of its rights except that against selfincrimination. Thus, the location of the self-incrimination clause in the Fifth Amendment rather than the Sixth proves that the Senate, like the House, did not intend to restrict that clause to the criminal defendant only nor only to his trial. The Fifth Amendment, even with the self-incrimination clause restricted to criminal cases, still puts its principles broadly enough to apply to witnesses and to any phase of the proceedings.

Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1009-13 (2003) (“[T]he right against compelled selfaccusation is in the wrong amendment to be a ‘trial right.’”); Michael J. Zydney Mannheimer, Ripeness of Self-Incrimination Clause Disputes, 95 J. Crim. L. & Criminology 1261, 1322 (2005) (“It appears that the placement of the Self-Incrimination Clause in the Fifth Amendment rather than the Sixth signifies that a ‘criminal case’ can exist before a ‘criminal prosecution[]’ commences.” (alteration in original)).

In sum, there is nothing to suggest that the Framers were seeking to confine the right against self-incrimination to trial. The Founders apparently viewed the right more broadly, envisioning it to apply beyond the trial itself.

Three very quick thoughts:  (1)  Originalism is at least part of the mainstream of our law, not a radical outlier; (2) note the extent to which the court looks to academic studies for support -- academic originalism need not be impractical; and (3) for originalism critics who think originalism is impossible or can be performed only by historians, this seems like a good target: what's wrong with it?  (Not my area, so I have no opinion on the outcome, but the originalist methodology seems plausible on its face).

(Thanks again to Donald Dripps for the pointer).