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31 posts from February 2018


Anthony Gaughan on Indicting the President
Michael Ramsey

At The Faculty Lounge, Anthony Gaughan (Drake Univ. Law School): Indicting the President.  From the introduction: 

The constitutional question is straightforward: Is a sitting president immune from criminal indictment by federal or state prosecutors? Or, to put it another way, is the House of Representatives the only institution with the constitutional authority to bring criminal charges against the president?

I think the answer to both questions must be yes. The Constitution’s text, historical precedent, and compelling public policy considerations weigh strongly in favor of the conclusion that Congress is the only appropriate venue for adjudicating the alleged crimes of a sitting president. Any other approach entails enormous risks to our constitutional order. Indeed, in the toxic environment of contemporary American politics, the special counsel’s filing of criminal charges directly against the president would plunge the United States into dangerously uncharted territory with unpredictable consequences for our democratic institutions.  

Professor Gaughan makes several textual points including this one:

Yet another reason to doubt the constitutionality of a pre-impeachment indictment of the president is Article I’s explanation that the president is “subject to indictment, trial, judgment and punishment, according to law” after “conviction” and “removal from office.” A plain reading of Article I thus suggests that the president is only amenable to punishment after leaving office.


Eric Segall: A Non-Originalist Separation of Powers
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted A Non-Originalist Separation of Powers (University of Richmond Law Review, forthcoming) on SSRN.  Here is the abstract:

Since the end of World War II, some of the Supreme Court’s most important constitutional law cases have focused on the appropriate relationship between and among the three branches of the federal government. Although the phrase “separation of powers” is not in the constitutional text, the Supreme Court has played a pivotal role in ensuring that the framers’ desire for a government of checks and balances is fulfilled. In most of these disputes, however, the Constitution’s text and original meaning played, at most, a marginal role in the Court’s decisions. Given the academic focus with “originalism,” as well as President Trump’s promise to only appoint originalist judges, the absence of textual and originalist analysis in the Court’s separation of powers decisions suggests that originalism, at least in this area of the law, is more illusion than substance.

This article suggests that the Court is right to focus on factors other than text and original meaning when deciding cases implicating the allocation of powers among the three branches of the federal government. The executive branch has changed so dramatically since the founding that there is little wisdom from 1787 that can help judges resolve most separation of powers problems today.


More from Neal Goldfarb on "Pragmatic Enrichment"
Michael Ramsey

Following up on this post, Neal Goldfarb (LawNLinguistics) comments: 

For me, what's significant about the role pragmatic enrichment plays in legal interpretation is that that it provides the response to simple-minded textualist arguments such as Roberts's in PDK Laboratories and Barron's in Barron v. Baltimore. The simplistic argument is, "But the text doesn't say that." And the response is that the text is semantically underspecified: it doesn’t expressly spell out the semantics of the proposition that it expresses, and the missing element needs to be inferred. In Barron, the missing element was the agent/target_of_prohibition: the entity doing the taking to which the clause applies. And inference is involved even in the supposedly literal reading. For example, it presumably went without saying that the Fifth Amendment didn’t apply to takings by nongovernmental entities or by foreign governments.

In ordinary communication, pragmatic enrichment is pretty much an automatic process that goes on below the level of conscious awareness.* But legal interpretation is an explicit deliberative process (see my post Comprehension, ordinary meaning, and linguistics). So the question arises whether and to what extent pragmatics (the field of study, not the pragmatic phenomena that are studied) plays a role in legal interpretation where the semantic meaning is underspecified. The function of the underlying pragmatic processes is mainly if not entirely to enable the listener/reader to infer the message that the speaker/writer intends to communicate. In the case of legal interpretation there's no speaker/writer in the ordinary sense,  and therefore arguably no communicative intentions in the ordinary sense. But I think that pragmatic processes are at work anyway; IMO, people can't help but draw inferences about intention, even if the intention they are inferring is being imputed to the lawmaker.

 If that's an accurate description of the process of determining ordinary meaning, it arguably suggests that the process inherently includes an element of Legal Process purposivism. Because what intention is likely to be imputed to the lawmaker, other than what an intention to do what is reasonable in the situation (taking into account all specifically known relevant factors about the lawmaker's preferences)?  And if that is going on under the surface, maybe it would be better to bring it out into the open. So it could well be that the result of combining textualism with a linguistically/cognitively informed model of determining ordinary meaning is that purposivism becomes part of the DNA of textualism—perhaps to a greater degree than is reflected in Scalia’s notion of objectivized intent

*It's possible that there are kinds of enrichments that may (at least according to some people) involve some level of conscious inference; I don't have a level of familiarity with the literature that would let me know that off the top of my head. And there's a variety of views about the details of how pragmatic processes work and even where the line is between pragmatics and semantics.



Originalism Works-in-Progress Conference Today and Tomorrow at USD Law School
Michael Ramsey

The Ninth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference will take place today and tomorrow (2/16 and 2/17) at the University of San Diego.  As always, the Conference is hosted by the USD School of Law's Center for the Study of Constitutional Originalism.  We are delighted to welcome an impressive group of paper presenters, commentators and participants to San Diego.  Here is the schedule:

Friday, Feb. 16:

2:30 – 2:45      Opening Remarks:  Mike Rappaport (USD)

2:45 – 4:00      First Paper: Richard Primus (Michigan), Enumerated Powers and the Bank of the United States; Commentator: Randy Barnett (Georgetown);  Moderator: Steve Smith (USD).

4:15 – 5:30      Second Paper: Thomas Merrill (Columbia), Legitimate Adjudication; Commentator: Michael McConnell (Stanford); Moderator: Laurence Claus (USD).


Saturday, Feb. 17:

 9:30 – 10:45    Third Paper: Jack Balkin (Yale), Arguing about the Constitution: The Topics in Constitutional Construction; Commentator: John Harrison (Virginia); Moderator: Thomas Colby (George Washington).

11:00 – 12:15  Fourth Paper: Christina Mulligan (Brooklyn), Diverse Originalism; Commentator: John McGinnis (Northwestern); Moderator: Larry Alexander (USD).

 1:30 – 2:45      Fifth Paper: Justice Thomas Lee (Utah Supreme Court) & James Phillips (Becket), Data-Driven Originalism; Commentator: Stanley Fish (FIU); Moderator: Don Dripps (USD).

3:00 – 4:15      Sixth Paper: David Upham (Dallas, Political Science), Taking American Citizenship Seriously and the Recovery of the Fourteenth Amendment; Commentator: Kurt Lash (Richmond); Moderator: Shaakirrah Sanders (Idaho).

4:30 – 5:45      Seventh Paper:  Eric Segall (Georgia State), Originalism As Faith; Commentator: Christopher Green (Mississippi); Moderator: Maimon Schwarzschild (USD).


War Powers Litigation after Zivotofsky v. Clinton
Michael Ramsey

I have posted my new short essay War Powers Litigation after Zivotofsky v. Clinton (Chapman Law Review, Vol. 21, No. 1, 2018, forthcoming) on SSRN.  It's mostly doctrinal and practical, but Part IV argues that a narrow version of the political question doctrine, as contemplated by Zivotofsky v. Clinton, is consistent with the Constitution's original meaning and post-ratification implementation.  (Some of these arguments were initially developed in posts on this blog).  Here is the abstract:

This symposium essay considers the role of courts in war powers disputes. In modern times, judicial opinions have been largely absent from the debate over constitutional war powers. Among other things, it is widely assumed—especially in light of the courts’ avoidance of the issue during the Vietnam War—that the political question doctrine would preclude judicial determination of war-initiation powers. In Zivotofsky v. Clinton, however, the Supreme Court appeared to re-characterize and limit the political question doctrine in a way that might allow wider litigation of war powers issues. According to Zivotofsky, the doctrine does not preclude courts from determining the meaning of statutes and the Constitution in separation-of-powers disputes, even when substantial foreign affairs issues are at stake. 

The actual subject of the Zivotofsky litigation was, however, relatively modest as foreign affairs controversies go. The courts’ willingness to retreat from the political question doctrine will be more severely tested in matters of greater foreign affairs significance, such as war powers. This essay considers the implications of Zivotofsky for war powers litigation, including by revisiting the Vietnam-era decisions. It first asks whether Zivotofsky, if taken at face value, does indeed suggest a renewed viability of war powers litigation. Second, it asks whether, as a practical matter, courts can comfortably undertake the task of war powers adjudication. Third, it considers the value of more aggressive war powers adjudication, including whether a Zivotofsky-inspired approach to war powers disputes is consistent with the courts’ constitutional role. It concludes that Zivotofsky supports the justiciability of some but not all war powers disputes, and that such an approach is consistent with both the Constitution's original meaning and modern practicalities.


The Implications of Slaughter-House Have Changed According to That Opinion's Own Terms
Andrew Hyman

The Fourteenth Amendment will turn 150 years old in July, and its most elusive clause is beyond doubt the Privileges or Immunities Clause (PIC), about which I have ruminated before at this blog.  Having written law review articles focusing on the two other clauses in that sentence of the Amendment (i.e. the Equal Protection Clause and the Due Process Clause), I have been trying to muster something scholarly and illuminating to write about  PIC.

The leading precedent, of course, is Slaughter-House, decided in 1873 by a closely divided Court.  Justice Samuel Miller wrote the majority opinion for five judges, and Justice Stephen Field wrote in dissent for four judges.  The issue in that case did not involve any right enumerated in the Constitution; the question instead was whether the State of Louisiana could require butchers to do their butchering in a consolidated and sanitary location under supervision of a state-established monopoly.  But the rationale and the dicta in Slaughter-House have been influential with regard to incorporation of the Bill of Rights, even apart from the actual decision.

In 2010, the U.S. Supreme Court decided 5-4 that the Second Amendment is incorporated against the states via the Fourteenth Amendment, in the case of McDonald v. Chicago.  Justice Alito wrote for four judges in favor of incorporation via substantive due process, saying "We therefore decline to disturb the Slaughter-House holding."  That was painful for me, because I view substantive due process as essentially illegitimate, not to mention unlimited in scope -- essentially a democracy-killer.  I wrote an amicus brief in that case, and was happy to see Justice Thomas cast the deciding vote based upon the Privileges or Immunities Clause instead.  Justice Thomas wrote that Slaughter-House "arguably left open the possibility that certain individual rights enumerated in the Constitution could be considered privileges or immunities of federal citizenship."  But Thomas also took issue with Slaughter-House: "I reject Slaughter-House insofar as it precludes any overlap between the privileges and immunities of state and federal citizenship."  But does it?  After all, the Court in Slaughter-House specifically said that various constitutional prohibitions against the states are privileges or immunities of citizens of the United States even though they apply against Congress too (e.g. “the rights secured by the thirteenth and fifteenth articles of amendment, and by the other [due process] clause of the fourteenth, next to be considered”).

The Privileges or Immunities Clause (PIC) has been a subject of innumerable scholarly analyses, in books, law reviews, and elsewhere.  As Justice Scalia once said, it is the “darling of the professoriate.”  I was in the room when Scalia said that, and although he said it dismissively there are excellent reasons why PIC has warranted intense study.  It was meant to be a central part of the compromise allowing rebel states to re-join the Union after the Civil War.  And, unlike the Due Process Clause, the leading supporters of PIC actually thought it would be capable of incorporating the Bill of Rights against the states.  Moreover, the interpretation of PIC in Slaughter-House places strict limits upon philosopher-judges who would prefer to wander beyond incorporation of the Bill of Rights, and who relish removing important matters from the control of legislators and electorates.   

Many scholars believe the majority opinion in Slaughter-House favored incorporation of the Bill of Rights, and many other scholars disagree.  The opinion itself was not crystal clear on that point.  As the quote of Justice Alito above indicates, Slaughter-House was eventually construed by the Court to reject incorporation of the Bill of Rights under PIC.   Although Slaughter-House was ambiguous on that point as of 1873, Slaughter-House by its own terms did not remain ambiguous on that point.  Here is the key sentence in Justice Miller’s opinion:

The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

Accordingly, it made good sense in 1873 to read the ambiguous parts of Justice Miller’s opinion as rejecting incorporation of the Bill of Rights against the states.  But the situation is different now, because incorporation of the Bill of Rights against the states is no longer “so great a departure from the structure and spirit of our institutions.”  It is now hardly any departure at all, no matter whether you think that has happened by the use or instead by the abuse of the Due Process Clause.  The bottom line is that this reasoning by Justice Miller implies we should no longer construe the ambiguity in his opinion against incorporation of the Bill of Rights, and indeed it is very easy to read his opinion as supporting incorporation.  At the same time, Miller’s opinion prescribed some strict and unambiguous limits on going much farther than incorporation.  For example, to determine what are the privileges or immunities of citizens of the United States, he flatly rejected looking at state law either as it existed in the past or how it exists now, nor did he give any weight to laws made by territorial legislatures or by any body but Congress.  And, the judges in Slaughter-House were unanimous that PIC does not give either Congress or the courts any ongoing power to cook up new privileges or immunities of citizens of the United States; as Justice Field wrote in dissent, “The amendment does not attempt to confer any new privileges or immunities upon citizens….”

I have not yet seen any scholarly article suggesting what is suggested above: that the implications of Slaughter-House have morphed because of incorporation under the Due Process Clause.  But, I am pretty sure of it, even assuming that incorporation under the Due Process Clause has been illegitimate.  This sesquicentennial of the Fourteenth Amendment would be so much better if we start actually obeying the amendment, and the Privileges or Immunities Clause could get us there.

The Gresham's Law of Law
Mike Rappaport

In economics, Gresham’s Law is the law that say “bad money drives out good money.” In law, there is a similar law – deviant or problematic lawmaking drives out orthodox or legitimate lawmaking. This occurs in both constitutional law and administrative law.

Let’s start with constitutional law. The law of the Constitution is supposed to be established through the constitutional enactment process and the constitutional amendment process. Yet, it is well known that the Supreme Court does not always follow this legitimate method of constitutional law making, and instead changes or updates the Constitution through judicial lawmaking.

It is sometimes thought that these two types of lawmaking can coexist, but it has become increasingly clear that this is not the case. Since the New Deal, and especially as the Court has engaged in more judicial updating, the constitutional amendment process has atrophied. The main reason is that a constitutional amendment can only pass if it is supported by a consensus of the country. And developing a consensus may take a long time and may require compromise.

But if five members of the Supreme Court feel free to update the Constitution anytime they believe there is something wrong with it, then the consensus necessary for a constitutional amendment may never develop. The Court will act before the time necessary to form the consensus. And the five members may not have to compromise, instead getting the result they desire. Moreover, once the Court acts, there is no opportunity for a consensus to develop since a significant portion of the public will have already gotten what they want.

So illegitimate constitutional lawmaking (judicial updating) will displace legitimate constitutional lawmaking (constitutional amendments).

Now consider administrative law. The Congress generally delegates the power to enact regulations to administrative agencies. As a result, most rules at the federal level that govern the public are passed by administrative agencies rather than by Congress. Put differently, most federal law – at least regulatory law – is enacted by administrative agencies rather than by Congress.

But why does this occur? There are many reasons but one of them is the difficulty of Congress passing new laws on its own. We usually live in a world of divided government and the two parties cannot agree on passing laws.  Therefore, it is necessary for the agencies to promulgate regulations on their own, without requiring the consent of the Congress.

Yet, it is not clear that this analysis is correct. Instead, the problem may be that Congress has delegated power to administrative agencies. If Congress were prohibited from delegating legislative power to agencies, then the agencies could not act on their own. That would put pressure on Congress to compromise in order to pass needed regulations.

At present, no such compromises occur. Instead, the President’s party to a significant extent gets the regulations it desires out of the agencies. And therefore the President and his party are unwilling to compromise in passing new regulations.

Once again, the existence of problematic lawmaking (delegated lawmaking) operates to drive out orthodox lawmaking (statutes by Congress).

There are other areas where this same problem occurs (such as the initiation of military hostilities).  But the basic point remains. Deviant lawmaking displaces legitimate lawmaking. You cannot have it both ways. Just as bad money is a sign of corruption that undermines the currency, so deviant lawmaking is a sign of corruption that undermines legitimate lawmaking.

Mark Pulliam on Judicial Engagement
Michael Ramsey

At the Intercollegiate Studies Institute, Mark Pulliam: The Libertarian Constitutional Fantasy (Modern Age, Vol. 60, No. 1 (2018)).  From the introduction: 

Debates regarding the role of the courts used to be waged primarily between conservatives, who were opposed to “judicial activism,” and liberals, who contended that the U.S. Constitution was a “living” document susceptible of a flexible interpretation. In recent years, however, libertarian scholars such as Georgetown Law professor Randy Barnett have altered the course of the debate by arguing—with some ingenuity—that the Constitution contains both enumerated and unenumerated (i.e., unwritten) rights, which federal courts have the obligation to enforce against both the federal and state governments. Barnett, and like-minded libertarians, claim that laws should enjoy no presumption of constitutionality, and the government should have the burden of justifying all challenged laws as necessary and appropriate.

This notion of “judicial engagement” purports to be an originalist theory, meaning that it is supposedly consistent with the original public meaning of the Constitution. I strongly disagree. The theory of judicial engagement is unsound as a matter of history and contrary to the original understanding of the framers. Moreover, it is flawed in theory and practically unworkable. Critics have accused judicial engagement of being an invitation for libertarian judicial activism, but given the overwhelmingly liberal orientation of the legal academy, the organized bar, and the federal courts, the theory will likely just encourage more mischief by progressive judges seeking to impose their personal predilections on the polity—continuing (or accelerating) a trend that began in the 1960s with the activism of the Warren Court.

The libertarian theory of constitutional law is clever and undoubtedly well-intentioned. The theory of judicial engagement posits that all nonharmful conduct is a protected liberty, and these individual “rights” are safeguarded from “majoritarian” interference. The real problem with the courts, proponents insist, has been judicial passivity, even abdication, especially since the New Deal. The government has grown, they believe, because courts have not held the Congress and state legislatures in check. All we need to tame the Leviathan is “better judging.” Enter “judicial engagement,” which sounds innocuous but actually reorders the way our government would operate in fundamental—even radical—ways.

(An extended discussion follows).

Regular readers will be familiar with this debate.  Without meaning to take sides, a way to frame it is this:

Judicial engagement, as I see it, consists of two basic steps:

(1) Judges should aggressively enforce the original meaning of the Constitution against the federal political branches and the states.  This position rejects the idea of "judicial restraint" to the extent that phrase is understood to mean that judges should defer to political branch decisionmaking and generally avoid interference with democratic results except where the Constitution is very clear.  Instead, "judicial engagement" sees judicial policing of the political branches as an essential defense of liberty against majoritarianism and an essential component of separation of powers.

(2) The Constitution's original meaning contains broad protection for unenumerated rights against the federal government (through the Ninth Amendment) and the states (through the Fourteenth Amendment, probably the Privileges or Immunities Clause).  Coupled with proposition (1), this proposition would lead to wide-ranging judicial scrutiny of state and federal legislation -- although how wide-ranging it would be would depend on how one identified the category of constitutionally protected unenumerated rights.  On the latter point there might be some substantial disagreement among proponents of judicial engagement, and so considerable variance in how much judicial supervision there would be.

The first proposition could be either a claim about original meaning or a claim about institutional roles.  The second proposition seems purely a question of original meaning which would stand or fall with the historical record offered in its support.

Of course, one could accept the first proposition and reject the second.  That was, I think, Justice Scalia's view.  Although there are passages in his writing that seem to reject the first proposition as well, his practice as a Justice reflected considerable willingness to intervene against the political branches, including in cases where the Constitution was not completely clear.  He emphatically rejected the second proposition as a matter of his view of the historical record.


New Book: "The Heart of the Constitution" by Gerard Magliocca
Michael Ramsey

Recently published, by Gerard Magliocca (Indiana): The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford Univ. Press 2018).  Here is the book description from Amazon:

This is the untold story of the most celebrated part of the Constitution. Until the twentieth century, few Americans called the first ten constitutional amendments drafted by James Madison in 1789 and ratified by the states in 1791 the Bill of Rights. Even more surprising, when people finally started doing so between the Spanish-American War and World War II, the Bill of Rights was usually invoked to justify increasing rather than restricting the authority of the federal government. President Franklin D. Roosevelt played a key role in that development, first by using the Bill of Rights to justify the expansion of national regulation under the New Deal, and then by transforming the Bill of Rights into a patriotic rallying cry against Nazi Germany. It was only after the Cold War began that the Bill of Rights took on its modern form as the most powerful symbol of the limits on government power. 

These are just some of the revelations about the Bill of Rights in Gerard Magliocca's The Heart of the Constitution. For example, we are accustomed to seeing the Bill of Rights at the end of the Constitution, but Madison wanted to put them in the middle of the document. Why was his plan rejected and what impact did that have on constitutional law? Today we also venerate the first ten amendments as the Bill of Rights, but many Supreme Court opinions say that only the first eight or first nine amendments. Why was that and why did that change?

The Bill of Rights that emerges from Magliocca's fresh historical examination is a living text that means something different for each generation and reflects the great ideas of the Constitution--individual freedom, democracy, states' rights, judicial review, and national power in time of crisis.


Michael Dorf: Affirmative Power to Strip State Courts of Jurisdiction
Michael Ramsey

Michael C. Dorf (Cornell Law School) has posted Affirmative Power to Strip State Courts of Jurisdiction on SSRN.  Here is the abstract:

The very substantial literature on the scope of congressional power to strip courts of jurisdiction contains a gap: it does not discuss the source of the affirmative power of Congress to strip state courts of their jurisdiction. Laws granting exclusive federal court jurisdiction over some category of cases are necessary and proper to the exercise of the power to ordain and establish lower federal courts, but what power does Congress exercise when it strips both state and federal courts of jurisdiction? The answer depends on the nature of the case. In stripping all courts of the power to hear federal statutory claims and challenges to federal statutes, Congress exercises whatever affirmative power authorizes the substantive statute. However, Congress lacks affirmative power to strip all courts of the power to hear constitutional challenges to state laws. That conclusion is important in its own right but also complements views — such as Henry Hart’s contention that the Supreme Court must have such jurisdiction as necessary to play its “essential role” in our constitutional system — about the scope and limits of congressional power under the Exceptions Clause of Article III. The limit on affirmative congressional power to strip state courts of jurisdiction to hear constitutional challenges to state laws ensures that there will be cases over which the Supreme Court can exercise its appellate jurisdiction in order to play its essential role.

An interesting set of puzzles, and an approach that is not really originalist but sensitive to text and history.

(Via Dorf on Law).