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35 posts from October 2017


Justice Scalia and How Originalism Fits into the Fabric of the Law
Mike Rappaport

In my last post, I explored whether Justice Scalia was an old or a new originalist, concluding that he was a new originalist in one way, but an old originalist in another way.  In this post, I want to look at another way that Scalia advocated an older type originalism.

One feature of newer originalist theories is that they have focused on how originalism fits into the law more generally.  The most significant example of this involves the theory of precedent.  It is well known that some originalists reject precedent, while others allow for it.  But the more fundamental theoretical question is why.

Justice Scalia accepted precedent.  In fact, he sometimes poked fun or criticized his co-originalist, Justice Thomas, by claiming that Thomas did not believe in precedent.  I am not sure that Scalia was correct, but it is clear that he accepted precedent.

But Scalia’s approach to precedent was unsatisfactory.  One problem was that he did not explain the circumstances when he would follow and when he would not follow precedent.  As a result, Scalia was open to the charge that he followed precedent based on his evaluation of the results.

But another problem with Scalia’s approach is that he did not describe what kind of law precedent is.  Put differently, why is it ok to follow precedent?  Is precedent based on the constitution, on statute, or common law?

Some of the newest originalist theories answer these questions.  Some people, like Lee Strang, argue that precedent is required by the judicial power.  Other people, like Gary Lawson, argue that the Constitution forbids precedent.  And others – like John Harrison and John McGinnis and I – argue that the Constitution allows for precedent as a matter of general common law and statute.  Under this latter view, the Constitution does not require or forbid precedent, but assumes that it will be established by the common law or by statute.

I am not aware that Scalia even thought about this question (although he may have).  But to my knowledge, he did not address it.  I am not finding fault here.  He had other fish to fry, coming earlier in the modern development of originalism.  But his approach was nonetheless incomplete.

Another issue is what kind of law governs the interpretation of the Constitution.  Here again I am not aware of Scalia addressing this issue.  (Scalia did address the type of law governing statutory interpretation a bit, claiming that the use of legislative history was unconstitutional, but I think he was mistaken here.)  But the most recent theories of originalism do address these questions, including those of Baude and Sachs and of McGinnis and Rappaport.  Since this is a complicated question, I will discuss it in a separate post in the future.

Larry Solum on Corpus Linguistics
Michael Ramsey

At Legal Theory Blog, Legal Theory Lexicon: Corpus Linguistics.  From the introduction: 

...  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  ...

Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or "plain meaning textualism") has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.


During the period when living constitutionalism and purposivism were the dominant approaches to the interpretation and construction of statutes, the precise linguistic meaning of statutory and constitutional provisions was relatively unimportant.  Because courts did not consider themselves bound by the meaning of the words and phrases, fine distinctions about meaning were much less important than the identification of the purposes and values that would determine the outcome of constitutional and statutory disputes.  But with the turn to formalist approaches like originalism and textualism, questions of meaning became significantly more important.

One approach to conventional semantic meanings relies on linguistic intuitions and dictionary definitions.  But this method has important limitations.  Linguistic intuitions are not infallible, and they may be affected by motivated reasoning.  Dictionary definitions are based on limited data collection and subjective judgments by the lexicographers who compile the dictionaries.  This raises the question whether there are better, more accurate, and more objective approaches.

The gradual ascent in the importance of the linguistic meaning of legal texts occurred at roughly the same time as another important development in the legal academy--the rise of interdisciplinary approaches in general and of empirical legal studies in particular.  This focus on empirical and interdisciplinary methods lead legal scholars (especially those with training in linguistics and the philosophy of language) to corpus linguistics--a data driven approach to linguistic meaning.

In sum, the turn to corpus linguistics in law is (at least in part) a result of the new emphasis on the meaning of legal texts (formalism) and the turn to interdisciplinary methods (empirical legal studies and linguistics).

Further discussion follows under the headings "How Does Corpus Linguistics Work?", "Application of Corpus Linguistics to Legal Interpretation", and "Limitations on Corpus Linguistics".  In conclusion:

The introduction of a new methodology to legal theory is a rare event, but corpus linguistics is one of the black swans.  It is still early days, but the use of corpus methods has already begun in earnest--both in the courts and the academy.  The Bibliography provides many of the key sources in a literature that still can easily be read in just a few days.

I have been posting frequently on corpus linguistics because  (as Professor Solum's post indicates) it is the "new kid in town."  I am less sure of its staying power.  It remains to be seen whether, especially as it applies to constitutional originalism, it produces results that are plausible yet contrary to the outcomes indicated by traditional originalist sources.  So far I have not seen that it does, but I remain open to persuasion.


Josh Blackman on the Emoluments Oral Argument
Michael Ramsey

At Josh Blackman's Blog: Analysis of Oral Arguments in CREW v. Trump.  From the introduction:

On Wednesday, October 18, the oral arguments in CREW et al v. Trump began at 10:30 a.m. in courtroom 11A. The right side of the courtroom was packed with press, and the left side was filled with attorneys affiliated with the case. An overflow room was opened on the 26th floor for spectators to watch on a closed-circuit feed. Brett Shumate argued in support of the Government’s motion to dismiss.  (Shumate was featured in a recent NLJ profile for his defense of the Government in the Emoluments Clause case, the DACA litigation, and the Sanctuary City suits). Deepak Gupta argued in opposition to the Government’s motion to dismiss, and Joseph Sellers provided a brief argument about how discovery would proceed if the Plaintiffs prevailed. With only a five-minute recess, the argument stretched until about 1:10 p.m. Judge Daniels should be commended for his excellent preparation—he came engaged and ready to ask probing questions of both sides. The Court announced that a decision would be issued in about thirty to sixty days.

Neither a transcript nor an audio recording is currently available. This post is based on my notes...

Professor Blackman then summarizes the key arguments (his headings): Article III Standing, Zone of Interest, Jurisdiction and Political Question, Meaning of Emolument, and Discovery if Motion to Dismiss Denied.

On "Meaning of Emolument" he reports:

Shumate at several junctures referred to the “original public meaning of emolument,” which included profits that arise from the provision of services connected to an office. Judge Daniels—who did not reference founding-era dictionaries, corpus linguistics, or any historical practice for that matter—offered a different definition of “emolument.” Namely, “compensation.” He derived that definition from the Domestic Emoluments Clause, which links the President’s “emoluments” to his salary or compensation. The Government rejected this definition as too broad, but Judge Daniels continued to push this definition with a hypothetical: if a foreign government offered the President $1 million for signing a treaty, how would it be characterized? The Government maintained that such an offer would be a “present,” which is also forbidden by the Foreign Emoluments Clause, but would not be an “emolument.” Judge Daniels dismissed the reference to a “present.” Seth and I had offered a different answer to this question in our briefs: because of the quid-pro-quo nature of the offer, it would not be a present, but would be a “bribe,” which is an enumerated ground for impeachment. Whether or not the President follows through, and signs the treaty does not matter, it is still a bribe. It is entirely predictable what sort of headlines would result from a DOJ lawyer using the word “impeachment”  in court, so Shumate’s answer is understandable, although not satisfying.


Jeffrey Pojanowski: Why Should Anyone Be an Originalist?
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) has posted Why Should Anyone Be an Originalist?  (Diritto Pubblico Comparato ed Europeo Online, Vol. 31, p. 583) on SSRN. Here is the abstract: 

This essay, a contribution to an international symposium on originalism [ed.: inspired  by Professor Larry Solum's testimony in the Gorsuch hearings], offers a defense of originalist constitutional interpretation grounded on the moral purposes of positive law. This essay draws on the natural law tradition to argue that a reasonably just set of constitutional rules merits the interpreter’s moral obligation. This is so not because a given constitution is perfectly just, nor because the constitution “just is,” but rather because a practically reasonable person should promote the moral benefits of a posited and durable, framework of cooperation that passes the threshold of moral acceptability. And, because practical reason underdetermines what kind of constitution a polity should choose, many modern constitutions clear that threshold.

And, only 8 pages!  (summarizing a longer article).

Plus, from the introduction, this is a useful summary of alternative justifications for originalism:

Before moving to my positive argument, I would like to flag three important, but I believe imperfect, defenses of constitutional originalism. The first kind of argument is conceptual: legal interpretation is by its nature originalist in character. If one seeks to understand what a text means, one must identify its original public meaning or what its authors’ originally intended to communicate. Reading that seeks any other kind of meaning (such as, “what makes this text the best it can be today?”) is not interpretation, but rather re-authoring by the reader. Re-authoring may be morally permissible, and not all constitutional law is interpretation, but to the extent there is interpretation, it is by definition originalist. Yet even if we accept this controversial definition of what “interpretation” is, one needs a further argument for why originalist interpretation ought to reign supreme in constitutional law, as opposed to doctrinal development over and above the original law.

A different reason is normatively particular. To the extent that an original constitution contains morally appealing legal propositions, it is good for courts to be originalist about them. We can call this the Happy Constitution theory of originalism. Critics sometimes argue that originalism is a marriage of convenience for American conservatives who prefer a smaller, decentralized government. Whatever the basis of that charge—and it is clearly not applicable to Professor Solum—an originalism that depends on a particularized moral assessment of the original constitution is rests on shaky ground. Such American originalists would have no principled argument against non-originalists who like a larger, more activist federal government. From this perspective, originalism is more a political project than a theory of interpretation. That would be awkward for a movement that prides itself on the rule of law and judicial neutrality.

A third reason is more legalist in character. Constitutional law does not consist only of primary rules. Rather, there are second-order rules of interpretation, and if that law of interpretation points officials towards originalism, courts should follow the law and be originalists. This angle of argument, which draws on H.L.A. Hart’s understanding of secondary rules, adds a welcome level of sophistication to originalist theory. But this positivist analysis also has limits. First, one has to conclude that the positive law of interpretation is in fact originalist. That is contestable in the United States and, to the extent it is false in jurisdictions abroad, the positivist argument does not offer non-U.S. courts and scholars any reason to be originalist.10 Furthermore, even if the positive law of interpretation is originalist, an interpreter needs moral reasons to persist in being originalist. Positive law changes all the time, and the secondary rules of interpretation may be particularly prone to shifting right under our noses. As with the conceptual argument above, one needs to move from the is to the ought.


Cass Sunstein: Originalism
Michael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School) has posted Originalism on SSRN. Here is the abstract: 

Originalism might be defended on two very different grounds. The first is that it is in some sense mandatory – for example, that it follows from the very idea of interpretation, from having a written Constitution, or from the only legitimate justifications for judicial review. The second is that originalism is best on broadly consequentialist grounds. While the first kind of defense is not convincing, the second cannot be ruled off-limits. In an imaginable world, it is right; in our world, it is usually not. But in the context of impeachment, originalism is indeed best, because there are no helpful precedents or traditions with which to work, and because the original meaning is (at least) pretty good on the merits. These points are brought to bear on recent defenses of originalism; on conflicts between precedents and the original meaning; on conflicts between traditions and original meaning; and on nonoriginalist approaches, used shortly after ratification.

I agree that the second type of defense of originalism is more plausible than the first.  But I would not say that it is linked a case-by-case (or issue-by-issue) assessment of originalism's good or bad consequences.  Rather, the consequentialist assessment would need to be system-wide, linked for example to values such as the rule of law and separation of powers.  If originalism is just something one uses when it helps get to a result that seems good for other reasons, then one is not really an originalist, just an opportunist.


Stefan Gries & Brian Slocum: Ordinary Meaning and Corpus Linguistics
Michael Ramsey

Stefan Th. Gries (UCSB, Linguistics) and Brian G. Slocum (University of the Pacific - McGeorge School of Law) have posted Ordinary Meaning and Corpus Linguistics (Brigham Young University Law Review, forthcoming 2018) on SSRN. Here is the abstract:

This paper demonstrates how corpus analysis, and similar empirically-based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to demonstrate the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the current judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. 

Indeed, such conventions are an important aspect of the sequential nature of legal interpretation, where a court first determines the ordinary meaning of the textual language and then:

(1) accepts that meaning as the legal meaning of the text, 

(2) rejects it in favor of an unordinary meaning, or 

(3) precisifies it in some way because the ordinary meaning is indeterminate in relation to the interpretive question before the court. 

Nevertheless, the constituent question of what makes some permissible meaning the ordinary meaning is an inherently normative issue that courts typically, and incorrectly, treat as self-evident. Corpus analysis can provide valuable insights about language usage but cannot by itself resolve normative issues.

We demonstrate the potential of corpus analysis (and similar empirically based methods of language analysis) through the study of two rather infamous cases where the reviewing courts made various general claims about language meaning. In both cases, United States v. Costello and Smith v. United States, the courts made statements about language that are contradicted by corpus analysis. We also demonstrate the potential of corpus analysis through Hart’s no-vehicles-in-the-park hypothetical. A discussion of how to approach Hart’s hypothetical shows the potential but also the complexities of the kind of linguistic language analyses that such situations and scenarios require. Corpus linguistics can yield results that are relevant to legal interpretation, but the necessary analysis is complex and requires training. We conclude that while it is doubtful that judges will themselves become proficient at corpus linguistics, they should be receptive to the expert testimony of corpus linguists in appropriate circumstances.


A Big Discovery by Gerard Magliocca
Michael Ramsey

At Concurring opinions, Gerard Magliocca reports:  Not King Tut’s Tomb, But . . .:

I am pleased to announce a discovery that will interest many legal scholars. The Chicago History Museum has a journal that contains Justice Bushrod Washington’s notes on Corfield v. Coryell; the 1823 circuit case that set forth the first major interpretation of the Privileges and Immunities Clause of the Constitution and was an influential source for some members of the Thirty-Ninth Congress in assessing the meaning of the Privileges or Immunities Clause of the Fourteenth Amendment.

I am currently researching a biography of Justice Washington and learned that the Chicago History Museum has some relevant materials. The item that immediately drew my attention was a notebook that dates from the 1820s (I need to do more work to give a precise date range). The journal contains drafts of letters, legal research, notes about life at Mount Vernon, and rough versions of at least two of the Justice’s Supreme Court opinions. My eyes opened as wide as saucers, though, when I saw “Corfield v. Coryell” as a heading followed by pages of notes about the case. ...

Plus, here, "a full transcript of the money quote in Justice Washington’s notes on Corfield."


Andrew Hessick: Consenting to Adjudication Outside the Article III Courts
Michael Ramsey

F. Andrew Hessick (University of North Carolina School of Law) has posted Consenting to Adjudication Outside the Article III Courts (Vanderbilt Law Review, forthcoming) on SSRN.  Here is the abstract:

Article III confers the judicial power on the federal courts, and it provides the judges of those courts with life tenure and salary guarantees to ensure that they decide disputes according to law instead of popular pressure. Despite this careful arrangement, the Court has not restricted the judicial power to the Article III courts. Instead, it has held that Article I tribunals—whose judges do not enjoy the salary and tenure guarantees provided by Article III—may adjudicate disputes if the parties consent to the tribunals’ jurisdiction. This consent exception provides the basis for thousands of adjudications by Article I judges each year. This Article challenges the consent exception. It argues that the consent of the parties should not be a basis for adjudication before an Article I tribunal. As it explains, permitting Article I tribunals to adjudicate based on the parties’ consent is inconsistent with the text of the Constitution and historical practice, and it undermines both the separation of powers and federalism.


Puerto Rico and the Racist, Non-Originalist Insular Cases
Michael Ramsey

At Slate, Doug Mack: The Strange Case of Puerto Rico:  How a series of racist Supreme Court decisions cemented the island’s second-class status.  It begins:

The devastation wrought by Hurricanes Irma and Maria has reawakened many Americans to the existence of Puerto Rico as well as the archaic laws and domineering bureaucracies that continue to burden the island. News outlets have scrambled to explain the Jones Act, the 1920 law that restricts shipping between U.S. ports, the PROMESA board that Congress set up last year to oversee Puerto Rico’s finances, and the fact that territory residents can’t vote for president.

But beneath these data points lurks something deeper and more problematic, yet rarely discussed: the Insular Cases, a series of Supreme Court decisions from the early 20th century. When we talk about the differences between states and territories—and when we ask why the United States even has territories in 2017—we’re really talking about the legacy of the Insular Cases. The recent controversies are, in fact, the latest iteration of a conversation about American empire that goes back more than a century.

The earliest Insular Cases were decided by the same Supreme Court that allowed “separate but equal” segregation in Plessy v. Ferguson in 1896. That case was overturned, but the Insular Cases, which are built on the same racist worldview, still stand today.

And from further on:

Downes v. Bidwell ..., which centered on a question of whether shipments from Puerto Rico to New York were interstate or international, established a new hierarchy of territories: They were now either “incorporated” with the United States or “unincorporated,” with only the former having the full protections of the Constitution. The court reasoned that Puerto Rico and the other new territories were “inhabited by alien races,” so governing them “according to Anglo-Saxon principles may for a time be impossible.” These islands, then, were “foreign in a domestic sense.”

Three years later the court considered the Americanness of individual territory residents in Gonzales v. Williams, which concerned a woman who moved from Puerto Rico to New York and was detained as an “alien immigrant.” The court ruled that she was American, sort of: She was a “noncitizen national,” a distinction new to the United States and inspired by the designations European empires used for their colonial subjects. Puerto Ricans finally gained citizenship in 1917 through legislation passed by Congress. Residents of most of the other current territories later gained it the same way, although Guamanians had to wait until 1950. The “noncitizen national” designation still holds in American Samoa, where residents are, by birth, not citizens of any country. ...

Balzac v. Porto Rico in 1922 added yet more complexity, finding that the Constitution didn’t apply in full to the territories—only “fundamental” rights were automatically in effect. ...

(Note: Doug Mack is the author The Not-Quite States of America: Dispatches from the Territories and Other Far-Flung Outposts of the USA, which sounds like a very interesting read).

As the post implies but doesn't say outright, the Insular Cases were an outrageous bit of non-originalism.  The distinction between "incorporated" and "unincorporated" territories -- and the corresponding idea that only "fundamental" rights (whatever they may be) apply in the unincorporated territories -- has no basis in the Constitution's text or founding-era commentary.  The opinions in the Insular Cases rest principally on pragmatism: given what the U.S. wanted to do with the territories and (even worse) who the people of the territories were, it didn't make sense to apply the same rules that the Constitution applied to (as the Court saw it) "real" Americans.  And the conclusion that people born in the unincorporated territories were not U.S. citizens at birth is flatly contrary to the text of Section 1 of the Fourteenth Amendment, which says that "all" persons born "in the United States ... are citizens of the United States" -- no exception for territories where that would be inconvenient because the population is a different race or culture.  True, the framers and ratifiers of the Fourteenth Amendment (and the original Constitution) presumably did not contemplate the U.S. acquiring colonial territories.  But the key is not what they expected, but what they wrote and  enacted.  And what they wrote and enacted contained no exception for non-white territories, until the Supreme Court in the Insular Cases made one up.

I emphasize this because it's pretty easy to come up with consensus awful non-originalist opinions (Dred Scott, Korematsu) but most of them have been long since abandoned.  The Insular Cases, as the post points out, still have important modern ramifications, and they too should be recognized as consensus awful non-originalist opinions.


Curtis A. Bradley: Exiting Congressional-Executive Agreements
Michael Ramsey

Curtis A. Bradley (Duke University School of Law) has posted Exiting Congressional-Executive Agreements on SSRN.  Here is the abstract:

Some commentators have argued that, even if the President has the unilateral authority to terminate Article II treaties concluded with the Senate’s advice and consent, the President lacks the unilateral authority to terminate “congressional-executive agreements” concluded with majority congressional approval, such as the North American Free Trade Agreement (NAFTA). This paper challenges that claim. If one accepts a presidential authority to terminate Article II treaties, this paper contends, there is no compelling reason to conclude differently with respect to congressional-executive agreements. Congressional-executive agreements have become largely interchangeable with Article II treaties as a matter of domestic law and practice, and, thus, for example, either instrument can be used to address matters relating to international commerce and trade. Moreover, while presidents do not have the authority to unilaterally terminate statutes, congressional-executive agreements are not mere statutes; they are, like Article II treaties, binding international instruments that can be concluded by the United States only through presidential action. These agreements also typically contain withdrawal clauses similar to the ones contained in Article II treaties that presidents have long claimed the authority to invoke unilaterally, and Congress has never indicated that it views presidents as having less withdrawal authority for such agreements. Indeed, in its trade legislation, Congress appears to have accepted that presidents may invoke such clauses unilaterally.

I think this is basically right as a practical matter, assuming the agreement's implementing legislation does not specifically bar presidential withdrawal.  But it is an interesting conundrum for originalists.  Assume congressional-executive agreements are not authorized by the Constitution's original meaning (my view; see The Constitution's Text in Foreign Affairs, Chapter 10).  In that case, there is literally no original meaning as to the President's ability to withdraw.  How should an originalist approach handle this situation?

One possibility is that, since the agreement is unconstitutional (not authorized by the original meaning), the President is not only allowed but obligated to withdraw (or to seek approval through the treatymaking clause).  This is essentially the argument I made with regard to the Paris Agreement on climate change (an executive agreement, not a congressional-executive agreement).

But maybe congressional-executive agreements are different because (unlike long-term substantive executive agreements) they have been accepted by practice, and so are authorized by political branch precedent (see here on the history).  If originalists regard them as constitutional on this ground, how to handle the termination issue?  History/practice does not provide guidance, because there is no material history of terminating congressional-executive agreements.  So another possibility for originalists is simply to say the original meaning has nothing to say on the matter: Non-originalist political branch precedent makes the agreement constitutional, and neither original meaning nor political branch precedent says anything about termination, so the question must be answered by appeal to some other source of law.

A third possibility, effectively Professor Bradley's solution, is that the matter can be resolved by analogy to treaties.  If a congressional-executive agreement is equivalent to a treaty for constitutional purposes (due to political branch precedent), then its termination provisions should be the same as a treaty.  So an originalist should use the original meaning to find the way treaties could be terminated, and apply that to congressional-executive agreements as well.  (In my view, that means the President can terminate them in accordance with their terms -- six months' notice in the case of NAFTA -- but not otherwise.

Now here's an even trickier question: suppose Congress by statute specifically prohibits the President from withdrawing from a particular congressional-executive agreement.  Is that constitutional?  I assume it would not be constitutional to do this in the case of a treaty (assuming the President has constitutional power to withdraw from treaties).  Professor Bradley's approach would thus seem to say that the hypothetical statute is unconstitutional, by analogy to treaty law.  But I'm less sure that's right.  Surely Congress could direct by statute that the United States will accord Canada and Mexico all the benefits of NAFTA, irrespective of whether the United States is formally a party to NAFTA, so long as Canada and Mexico accord the United States all the benefits of NAFTA.  Is a prohibition of withdrawal different enough to make this the dividing line, especially as the whole area isn't one contemplated by the original meaning?  This does not seem an easy question to answer.