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31 posts from April 2018


Christina Mulligan: Diverse Originalism
Michael Ramsey

Christina Mulligan (Brooklyn Law School) has posted Diverse Originalism (University of Pennsylvania Journal of Constitutional Law, forthcoming) on SSRN.  Here is the abstract:

Originalism has a difficult relationship with race and gender. People of color and white women were largely absent from the process of drafting and ratifying the Constitution. Today, self-described originalists are overwhelmingly white men. In light of these realities, can originalism solve its “race and gender” problems while continuing to be originalist? This Article argues that originalists can take several actions today to address originalism’s race and gender problems, including debiasing present-day interpretation, looking to historical sources authored by people of color and white women, and severing originalism and the Constitution’s text from their historical associations with racism and sexism. Taking these steps will not only make originalism more inclusive, but also help originalists become better at accessing the original meaning of the Constitution.

Professor Mulligan presented an earlier draft of this paper at the originalism works-in-progress conference in San Diego last February.


Reviving the Nondelegation Doctrine
Mike Rappaport

The Supreme Court has accepted certiorari in a case that raises a nondelegation doctrine question (as well as several other issues). In Gundy v. United States, the nondelegation issue involves the federal Sex Offender Notification and Registration Act ("SORNA"). The Act relates to the requirement that sex offenders register their status. In one provision of the Act, “Congress left it to the Attorney General to decide whether and on what terms sex offenders convicted before the date of SORNA's enactment should be required to register their location or face another criminal conviction.”

While the Act specified in detail how it was to be applied to a person convicted after its passage, the Act said almost nothing about how it was to be applied to past offenders. Instead, it delegated the question to the Attorney General, providing that “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter ... and to prescribe rules for registration of any such sex offender.”

As then-Judge Gorsuch wrote in a different case before the 10th Circuit on the provision, this leaves enormous discretion to the AG:

As the government acknowledges, this language leaves the Attorney General free to do nothing . . . Alternatively, "[u]nder his delegated authority in Subsection (d), the Attorney General could" require all past offenders to register or "require some but not all to register." Or, alternatively still, he could require those forced to register to "comply with some but not all of the registration requirements" applicable to future offenders in order to adapt the law as he thinks best for past offenders . . . Even then, the Attorney General remains free to "change his mind at any given time or over the course of different administrations."

I agree with Judge Gorsuch that the Supreme Court should hold this delegation unconstitutional.

The problem in this area is to establish a workable standard for excessive delegations. I have a proposal for a reasonably workable standard.  Some broad delegations to agencies allow them to take actions that are “in the public interest.”  Such delegations should be unconstitutional.  Only delegations that are more constraining would be constitutional. While this would allow less constrained delegations than I would prefer, it would establish a relatively clear standard. And it would hold the delegation in Gundy unconstitutional, since the delegation in that case had no limitation on the AG at all.

But my guess is that the Supreme Court is not interested in resolving the matter in this way. Instead, I am guessing some of the justices are attracted to Justice Gorsuch’s dissent when he was a 10th Circuit judge, where he advocates a special standard on delegations that involve criminal law sanctions. Here is Gorsuch’s proposed standard, which he believes is consistent with Supreme Court case law in the Touby v. US case:

Distilling Touby to its essence, at least three "meaningful" limitations emerge: (1) Congress must set forth a clear and generally applicable rule (unauthorized persons may not possess the drug) that (2) hinges on a factual determination by the Executive (does the drug pose an imminent hazard?) and (3) the statute provides criteria the Executive must employ when making its finding (does the drug in question currently have an accepted medical use?). These three criteria could easily be applied to most any delegation challenge in the criminal context and provide the more meaningful standard the Court has long sought. In fact, since Touby a number of courts of appeals have employed something very much like them when assessing delegation challenges to federal criminal statutes.

While it would have a narrower application than the standard I suggest, Gorsuch’s standard would still be important, as it would strike down a delegation arguably for the first time since the New Deal. And once that occurs, it becomes easier for the Court to strike down other delegations.

Nelson Lund Reviews Martin Redish on Judicial Supremacy
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted Judicial Supremacy: Palladium of Liberty or Academic Paradox? (33 Constitutional Commentary 101 (2018)) on SSRN.  Here is the abstract:

Martin H. Redish, a distinguished federal courts and constitutional law scholar, has written a remarkable book-length defense of judicial supremacy. Alarmed by the work of academics whom he sees as dangerously loose cannons—including Bruce Ackerman, Larry Kramer, and Michael Stokes Paulsen—Redish seeks to reestablish a “formalist traditional model” that takes the written Constitution seriously. This model, which is emphatically not originalism, treats the “prophylactically insulated judiciary [as] the beating heart of the structural brilliance that defines American constitutionalism.”

After defending his claim that the Supreme Court rightly enjoys supremacy in the interpretation of the written Constitution, Redish draws a number of novel inferences about its implications. Unlike the President and other executive officials, for example, judges may be impeached only for criminal behavior, and then only if the conduct threatens the integrity of the judicial role. The Constitution requires that state judges be granted life tenure. The judiciary has the constitutional power and obligation to assure that Congress does not deceive the electorate as to the manner in which its legislation alters the preexisting legal, political, social, or economic topography. The Fifth Amendment repealed the Suspension of Habeas Clause in Article I.

Even if one doubts that the Supreme Court should or ever will accept the arguments Redish makes, readers of his book will be forced confront proposals that they surely would not have conjured on their own.

The lengthy review, principally from an originalist perspective, is a bit harsher than the abstract indicates.

Professor Redish's book is Judicial Independence and the American Constitution: A Democratic Paradox (Stanford University Press, 2017).  Here is the book description from Amazon: 

The Framers of the American Constitution took special pains to ensure that the governing principles of the republic were insulated from the reach of simple majorities. Only super-majoritarian amendments could modify these fundamental constitutional dictates. The Framers established a judicial branch shielded from direct majoritarian political accountability to protect and enforce these constitutional limits. Paradoxically, only a counter-majoritarian judicial branch could ensure the continued vitality of our representational form of government. This important lesson of the paradox of American democracy has been challenged and often ignored by office holders and legal scholars. Judicial Independence and the American Constitution provocatively defends the centrality of these special protections of judicial independence. Martin H. Redish explains how the nation's system of counter-majoritarian constitutionalism cannot survive absent the vesting of final powers of constitutional interpretation and enforcement in the one branch of government expressly protected by the Constitution from direct political accountability: the judicial branch. He uncovers how the current framework of American constitutional law has been unwisely allowed to threaten or undermine these core precepts of judicial independence.


$50,000 Cooley Book Prize to Lawson & Seidman
Michael Ramsey

At Volokh Conspiracy, an announcement from Randy Barnett:

I am very pleased to announce that, on April 20th, the Georgetown Center for the Constitution will award its first annual Thomas M. Cooley Book Prize of $50,000 to honor a book that makes an important contribution to our understanding of the Constitution. The first recipients will be professors Gary Lawson (Boston University School of Law) and Guy Seidman (IDC Herzliya—Radzyner School of Law) for their book, A Great Power of Attorney: Understanding the Fiduciary Constitution (Kansas University Press, 2017), which explores the type of legal document that is the Constitution and how this affects the powers it grants to government officials and the duties they owe to the public.

(Thanks to Seth Barrett Tillman for the pointer).

Here is the book description from Amazon:

What kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. Legal scholars Gary Lawson and Guy Seidman propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document—or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.” What follows from this particular conception of the Constitution—and is of greater importance—is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government.

In mapping out what these imperatives might mean—such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitution's beneficiaries—Lawson and Seidman offer a clearer picture of the original design for a limited government.

Congratulations to Professors Lawson and Seidman!


More Scalia Commentary
Michael Ramsey

At Liberty Law Blog, John McGinnis responds to this post by Calvin TerBeek: Justice Scalia’s Conservatism Does Not Detract from His Originalism.  From the introduction:

The ideas of Justice Scalia remain at the center of constitutional discourse even after his death. This jurisprudential afterlife is unusual: with rare exceptions, justices who leave or retire disappear from intellectual and legal discourse without a trace. Most held the legal world in thrall because of their powerful office, not their distinctive voice.

Justice Scalia did not just cast votes, but advanced and refined an idea—originalism—that survives his demise. Not surprisingly, those who do not like this idea are not very happy about the Justice’s enduring influence.   For instance, a recent book [by Richard Hasen] tries to take him down, and in turn has been heavily criticized [by Ed Whelan].

Another effort at downgrading Justice Scalia’s legal contribution claims that only recently have those praising Justice Scalia framed his importance in terms of his jurisprudential stances.  It argues that earlier in his career he was seen mainly by his admirers as a movement conservative. The implication is that his ideas are largely a reflection of that movement and should not have much resonance outside it.

What was offered as Exhibit A in support of this view is a short essay I wrote for National Review back in 1996, arguing that Scalia would be a good presidential candidate in 2000. (This piece does not appear to be available online but I am happy to e-mail a PDF copy to whoever is interested).  I contended that Scalia was an articulate conservative who united both the social and economic strands of the right—a welcome change from Bob Dole, the Republican standard bearer in 1996, who was neither articulate nor conservative, but just a generic Republican leader.

At The American Prospect, Simon Lazarus reviews Richard Hasen's book on Scalia:  The Scalia Problem: It Wasn’t Originalism or Textualism -- It Was Trumpism.  From the core discussion of the book:

As its title suggests, the book details what Hasen—tactfully—terms his subject’s “contradictions.” Scalia never consistently owned up to which of the very different versions of his interpretive lodestars he subscribed. Notoriously, he picked and chose among competing theories, and, indeed, ignored or violated outright his basic originalist/textualist canon when convenient for justifying desirable—usually conservative—results.

For progressives, it is critical to get their arms around this history—but not merely to mock their late nemesis. The real challenge is to understand why Scalia’s catechism has won the broad influence it has had, both in legal circles and especially in politics. Without taking on that inquiry, progressives have little hope of countering the agendas that have, for decades, driven conservatives to beaver away, as Linda Greenhouse recently wrote, at weaponizing the federal judiciary. In this fateful struggle, conservatives have registered intensity, smarts, and impact that progressives have rarely matched.

Hasen shows how Scalia chronically finessed such questions as whether court decisions should be guided by broadly worded constitutional text, or whether “majestic” phrases should be narrowly construed to mirror the societal practices contemporaneous with their adoption. To take just one of many examples, Scalia often insisted that the 14th Amendment’s guarantee of “equal protection of the laws” outlawed only discrimination based on race, but not gender, let alone sexual orientation. He bypassed the expansive constitutional text on the grounds that its framers were actually preoccupied with eliminating only state-sponsored racial discrimination against African American former slaves.

Conversely, however, when the constitutionality of affirmative action came up, Scalia executed a 180. He ignored (refusing even to discuss with his clerks) the overwhelming evidence that such an actual-intent approach would validate affirmative action measures benefiting racial minorities, despite the fact that the same Congress that passed the 14th Amendment also enacted express racial preferences to help former slaves adjust to their new freedom.

Surprisingly, Hasen insists that Scalia’s inconsistencies do not reflect bad faith: He writes that the justice sincerely “envisioned judges using neutral, language-based tools of interpretation.” He was no “less principled or more result-oriented” nor “more driven by ideology than other justices.” Indeed, the author suggests, Scalia may have been unfairly singled out for heightened criticism because he “proclaimed himself as following a higher standard,” one that “neither he nor the other justices could meet.”

Indeed, it is that self-imposed “higher standard” which Hasen seems intent on principally blaming for the blotches that mar the record of this “incredibl[y] gifted” jurist. Hasen’s target, to which he devotes two and a half of his eight chapters, is the “language-based tools of interpretation” on which Scalia staked his career—originalism and textualism. “The gap between Scalia’s stated approach and his practice in deciding real cases,” Hasen writes, revealed not so much the justice’s own faults as “the difficulty of using [such methodological approaches] to limit judicial discretion.” “The notion,” he adds, “that judges can use originalist [or textualist] methods to ‘find’ or ‘discover’ the law rather than make it, has proven to be an illusion.”

But the review does not endorse this approach, despite the "progressive" orientation:

As a matter of common sense, originalism and textualism—in principle and sensibly understood—cannot be dismissed as bunk. What Hasen seems to favor (and what Scalia’s nemesis, Judge Richard Posner, characterizes as “pragmatic” jurisprudence)—essentially, situation-specific balancing of multiple variables—may work in academic debates about how judges in fact make decisions. But this play-it-by-ear approach will not wash as jurisprudence, politically or philosophically. Judges, certainly life-tenured federal judges, can justify their immense power only by assuring litigants and the electorate that they make earnest, good faith efforts to determine and apply applicable law. Fairly reading the relevant text and its framers’ original understanding is an essential starting point—though, of course, rarely the endpoint—for that exercise.

And in conclusion:

In response, progressives should downplay sparring over abstract methodologies, and instead trumpet the often compelling case that justice and the law, as written and originally understood, are on the progressive side.

(Via How Appealing).

Finally (via Legal Theory Blog), Professor Hasen has posted Keynote Address: Judging the Political and Political Judging: Justice Scalia as Case Study (Chicago-Kent Law Review, 2018, forthcoming) on SSRN.  Here is the abstract:

This Address builds upon ideas first presented in Richard L. Hasen, After Scalia: The Future of United States Election Law, 17 AMERIKA HŌ 1 (Koji Higashikawa trans., 2017) (Japan), and RICHARD L. HASEN, THE JUSTICE OF CONTRADICTIONS: ANTONIN SCALIA AND THE POLITICS OF DISRUPTION (2018). It is a revised version of a Keynote Address delivered at “The Supreme Court and American Politics,” a symposium held October 17, 2017 at the Chicago-Kent College of Law. 

It considers through the lens of Justice Scalia’s opinions the role that views of the political process play, at least rhetorically, in how Supreme Court Justices decide cases. It focuses on Justice Scalia’s contradictory views on self-dealing and incumbency protection across a range of cases, comparing campaign finance, on the one hand, to partisan gerrymandering, voter identification laws, political patronage, and ballot access rules on the other. In this context, I argue that the defects in the political process he sometimes flagged appeared to do little work, and that his decisions are better understood by his ideological commitments to what Chicago-Kent Professor Steven Heyman calls “conservative libertarianism.”

Part II describes Justice Scalia’s contradictory approaches on questions of self-dealing and incumbency. Part III argues that, the contradictions lined up with the Justice’s ideological and partisan commitments, and that this is hardly unique to Justice Scalia. Finally, Part IV offers three lessons to be learned from this case study for the interaction of the Court, the political branches, and election law.


Ed Whelan on Richard Hasen on Justice Scalia
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Richard Hasen’s Jumble of Confusions — Parts 1, 2 & 3 (reviewing [harshly] Richard Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption).  Part 1 is here, part 2 here, and part 3 here.

He begins:

The title of this post is somewhat hyperbolic, but far less so than the title — The Justice of Contradictions — that law professor Richard L. Hasen has placed on his new book critiquing Justice Scalia. His critique, as I will illustrate in a small handful of posts, is badly flawed.

On the third of the three "contradictions" Professor Hasen identifies:

3. Scalia “was an ‘originalist’ who believed constitutional provisions should be interpreted in line with their public meaning at the time of enactment, except when he wasn’t. He sometimes followed what he considered to be errant precedent because the law was ‘settled,’ and at other times he simply ignored originalist analysis altogether.”

When Hasen asserts that Scalia “at other times [i.e., even in the absence of settled precedent] … simply ignored originalist analysis altogether,” I gather that he is referring to his own claim (made on at least two occasions later in the book) that, on the question of whether racial preferences comport with the Equal Protection Clause, Scalia “ignored evidence of special programs for newly freed slaves at the time of ratification” of the Fourteenth Amendment.” But Scalia agreed that remedies were appropriate for actual victims of racial discrimination. (See, for example, his separate opinions in Adarand Constructors, Inc. v. Pena (1995) (“Individuals who have been wronged by unlawful racial discrimination should be made whole”) and Richmond v. J.A. Croson Co. (1989) (“Nothing prevents Richmond from according a contracting preference to identified victims of discrimination”).) So it’s puzzling why Hasen thinks that “special programs for newly freed slaves” would somehow be relevant originalist evidence in favor of the constitutionality of racial preferences for those who haven’t been shown to have been victims of racial discrimination.

And from the third post:

I’m not going to exhaust the reader or myself by running through the remainder of Richard Hasen’s book. Instead, I’ll provide here some examples of defective arguments in the book. In providing these examples, I don’t mean to suggest that the book fails to offer any criticisms that fall within the broad bounds of reasonableness. But I think that the defects do illustrate the broader problem of the book’s pervasive one-sidedness and of Hasen’s practice of construing and depicting everything in the light least favorable to Justice Scalia. ...


Ryan Williams: The 'Guarantee' Clause
Michael Ramsey

Ryan C. Williams (Boston College - Law School) has posted The 'Guarantee' Clause (Harvard Law Review, Vol. 132) on SSRN.  Here is the abstract:

Article IV’s command that the “United States shall guarantee to every State in this Union a Republican Form of Government” stands as one of the few remaining lacunae in the judicially enforced Constitution. For well over a century, federal courts have viewed the provision — traditionally known as the Guarantee Clause but now referred to by some as the “Republican Form of Government” Clause — as a paradigmatic example of a nonjusticiable political question. In recent years, however, both the Supreme Court and lower federal courts have signaled a new willingness to reconsider this much-criticized jurisdictional barrier in an appropriate case, leading many to predict that its eventual demise is only a matter of time.

The interpretive possibilities inherent in a judicially enforceable Guarantee Clause have tantalized generations of constitutional theorists, leading to a significant body of research attempting to uncover what was meant by the provision’s oblique reference to “a Republican Form of Government.” But this research has almost completely ignored a separate inquiry that is equally critical to understanding the provision’s meaning and significance — namely, what it means for the United States to “guarantee” such republican government to the states.

This Article seeks to shed new light on the original meaning of the term “guarantee” in the Guarantee Clause, by looking to an unexpected source — namely, eighteenth century treaty practice. The language of the Guarantee Clause closely parallels language that was frequently used in seventeenth and eighteenth-century treaties. The interpretation of such treaty provisions was informed by well-settled background principles of international law, which attached particular legal significance to the term “guarantee.” As used in eighteenth-century treaties, the term “guarantee” signified a diplomatic commitment whereby one nation pledged its support to the protection of some preexisting right or entitlement possessed by another sovereign. Importantly, however, such provisions were deemed to exist solely for the benefit of the guaranteed sovereign and conferred no separate rights or entitlements on the nation pledging the guarantee. 

Viewing the Guarantee Clause through the lens of eighteenth-century treaty practice casts significant doubt on claims by modern scholars that the provision should be understood as a repository of judicially enforceable individual rights. Rather, both the text of the provision and contextual evidence regarding its original understanding strongly suggest that the provision more likely reflected a quasi-diplomatic, treaty-like commitment on the part of the federal government to its quasi-sovereign component states. This evidence lends new, and heretofore unappreciated support, to the Supreme Court’s longstanding practice of treating Guarantee Clause claims as beyond the scope of judicial cognizance.

An important and interesting new originalist assessment of the guarantee clause -- I read this paper as an external reviewer for a law review & was very impressed.


John Welch & James Heilpern: The Preamble's Principal Place in Constitutional Law
Michael Ramsey

John W. Welch (Brigham Young University - J. Reuben Clark Law School) and James Heilpern (Law and Corpus Linguistics Fellow, Brigham Young University - J. Reuben Clark Law School) have posted The Preamble's Principal Place in Constitutional Law (91 S. Cal. L. Rev., forthcoming) on SSRN [although the title in the actual posted paper is "Recovering Our Forgotten Preamble," which I like a lot better].  Here is the abstract:

This article argues that the Preamble to the Constitution of the United States of America deserves a place of primacy in constitutional law, in federal judicial decision-making, and in the nation’s civic discourse. The Preamble does more than set forth general, vague aspirations. It epitomizes the particular purposes behind the adoption of the Constitution that were desperately needed to repair and replace the faltering Articles of Confederation. The Preamble’s words were specifically and methodically chosen, both in the Preamble itself and often within the body of the Constitution. Based on their prompt affirmative vote, all members of the Constitutional Convention, which drafted the version of the Constitution that was submitted to the thirteen states for ratification, readily embraced the Preamble. Some delegates later stated explicitly that it should be used as the key to interpreting the Constitution, its meanings, intentions, purposes, and limitations. Indeed, it is doubtful that the Constitution would have been ratified without the text of the Preamble prominently standing at the top of the proposed document, and the Preamble occupied a dominant and valuable position at the head of constitutional analysis throughout the nineteenth century. In 1905, however, the United States Supreme Court decided the case of Jacobson v. Massachusetts. This case has been rarely discussed at any length and is only vaguely remembered. Perhaps somewhat unwittingly, the Court used language that has been understood to relegate the Preamble to a minor, insubstantial role: “Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.” The Court then went on summarily to treat the Preamble as irrelevant to the case. 

As will be argued here, the Court’s unnecessarily broad language should be seen as dicta or should otherwise be narrowed or recalibrated. Although in some senses the Preamble may not be a “source of any substantive power” conferred upon the federal government by the people of the United States, this does not mean that the Preamble does not serve any legal functions, as has been consequently generally thought. Instead, the Preamble is a collective source of unifying objectives for the operation of the American democratic republic. It is a formative statement of guiding principles to be used in interpreting the meaning of the words and structures found in the body of the Constitution. It is a body of authorizing statements of purpose that regulate the reasons behind the organic operations of the federal government. And it constitutes a selected list of limits that set boundaries beyond which the federal government is not authorized to go. The 1905 assertion by the Supreme Court and its application in Jacobson was based on little, if any, substantive research, briefing, discussion, argument, or consideration. Moreover, this opening point in the Jacobson opinion was not material to the holding of the case. Consequently, this dicta should be clarified or otherwise revised.

Jacobson’s dicta has gone down in subsequent judicial history and political thought as a controlling dismissal of the idea that the Preamble to the Constitution of the United State has much if any legal power or effect, and it has most likely contributed to the popular idea that the Preamble has little or no legal value or judicial usefulness. As a result, developments over the intervening century of American constitutional law and politics have left the United States in an odd position of unnecessary weakness. The Preamble is rarely mentioned in federal court opinions, in constitutional law treatises, or in leading law school constitutional textbooks. Increasingly, the Preamble is less often taught or memorized in primary or secondary school curricula. At a time when constitutional courts could use principled guidance more than ever before in drawing upon the fundamental purposes that give American constitutional jurisprudence its unifying coherence and authority, it is unfortunate that the Preamble’s primary written articulation of those leading civic values and defining governmental purposes goes almost entirely unmentioned. In order to lay a foundation for assessing Jacobson’s unsupported claim that the Preamble had “never been regarded as the source of any substantive power” and also to expand Jacobson’s glancing reference to Justice Story’s 1833 Commentary on the Constitution, Part I of this study begins at the inception of the American Republic and examines the legal and textual history of the Preamble from the founding era of the United States of America until the end of the nineteenth century. This Part develops several lines of inquiry and analysis in order to broaden and strengthen any understanding of the Preamble. This study aims to appeal both to those who favor a more authoritative originalist approach and to those who prefer a more organic living approach. It will be shown that the Preamble was intended to be and functioned as an important statement of specific and exclusive purposes to be undertaken by the federal government. 

Questions raised here will first include: What problems had arisen under the Articles of Confederation? What words from the Articles of Confederation were retained or dropped by the Preamble in addressing those problems? (I. §A). How did the language of the Preamble crystallize the proposed plans for the Constitution? What instructions were given by the Committee of Detail regarding the drafting of the Preamble? (I. §B). Who served on the Committee on Style that drafted the Preamble, and what use did they make of language in preambles from earlier state constitutions? (I. §C). How does the Preamble relate to the Declaration of Independence or other political, philosophical, religious, or legal sources? (I. §§D.-E). What legal force and effect did “whereas clauses” or preambles have at the beginning of statutes or contracts under the Common Law in the late-eighteenth century? (I. §F). Part I then turns to questions such as: How important was the Preamble in facilitating the ratification of the Constitution? What made the Preamble so persuasive and felicitous? What was said about the intentions behind the Preamble by members of the Constitutional Convention and in state ratifying conventions? (I. §G). How does the Preamble relate to the Ninth and Tenth Amendments, especially the lack of the word “expressly” in the latter? (I. §H). Using the latest technology and the Corpus Linguistics data base, the contemporaneous meanings of some of the main terms in the Preamble will be explored. (I. §I). All of this sheds light on how the Preamble contributes legally to Constitutional law, both as a whole and with respect to its specific words.

Part I then considers the ways in which people understood and used the Preamble during the Early American Republic and through the end of the nineteenth century leading up to Jacobson. It will be shown that the principles embedded in the Preamble were viewed as articulating the essence of the Constitution and that the Preamble was considered by some to be, in theory, the key of constitutional law. Although debated, the dominant view allowed for the Preamble to be seen as providing implied powers as well as purposeful guidance to all of the operations of the United States. Questions raised in these sections will include: How was the Preamble understood by the Supreme Court in the early nineteenth century? (I. §J) How were the Preamble and the Tenth Amendment understood in the great 1830 debate on the nature of the Constitution (I. §K.2), and also in the 1833 commentary by Harvard Professor and Supreme Court Justice Joseph Story (I. §K.4)? How was the Preamble invoked politically by John Quincy Adams in the Jubilee celebration of the United States Constitution in 1837, by presidential candidate Joseph Smith in 1844, by Senator John C. Calhoun, and by President Abraham Lincoln? (I. §§K6-8). A history of the development of preambles in state constitutions throughout the nineteenth century will conclude this Part, showing that the individual state constitutional preambles were carefully drafted, seen as having legal substance, and made use of language from the federal Preamble, affirming the legal import of constitutional preambles generally (I. §L). Part II of this article then offers a detailed examination of the 1905 Supreme Court opinion in Jacobson v. Massachusetts. It will be argued, on several grounds, that this case should not be cited in support of propositions that the Preamble is not law or that it is not part of the Constitution, as some courts and public discourse have in effect taken that case to mean. Since the holding of this case turned on other factual grounds irrespective of the Preamble (II. §§A-B), its characterization of the Preamble should be limited or otherwise dismissed as dicta without affecting or overturning the actual holding of that case (II. §C). Indeed, the general understanding of Jacobson should be modified, as it represents an unwarranted departure from eighteenth- and nineteenth-century American jurisprudence.

Part III then surveys how Jacobson has been interpreted by federal courts since 1905. At first, Jacobson’s marginalizing of the Preamble was readily accepted, but in many cases, Jacobson has simply been ignored (III. §A). The relatively few law review articles or essays about the Preamble will be surveyed to show that the Preamble is rightly seen as more than just aspirational or wishful (or dangerous) thinking of the people. The Preamble has served a number of legal purposes and, in particular, has helped constitutional law stay responsive to major social changes and legal developments during the years since Jacobson. (III. §B).

Comparative constitutional law also shows that preambles generally are treated as legally important—and sometimes as controlling—in the jurisprudence of Germany, South Africa, and elsewhere. International political and legal experience show that legal invocations of preambles should not be dismissed simply because their terms may be broad or general or for any other arbitrary reason. The Preamble’s terms are no broader or any less important than other important foundational terms in the Constitution. (III. §C).

In conclusion, Part IV looks briefly at the broad state of the law concerning the Preamble today. It will be argued that the Preamble should be understood in the twenty-first century as serving several legal functions, not only in implying certain powers but also in limiting the number and scope of federal constitutional purposes and enumerated powers. Thus, any action of the federal government that cannot be said to serve primarily one or more of the purposes stated in the Preamble should be ruled out of bounds. Very different from the perception of Jacobson, this view aligns with what James Monroe meant when he said that the Preamble “is the Key of the Constitution.” Whenever federal power is exercised, contrary to the spirit breathed by this introduction, it will be unconstitutionally exercised, and ought to be resisted by the people.” Altogether, this Article encourages citizens, lawyers, officials, judges, scholars, diplomats, educators, and politicians throughout America to take the Preamble more seriously than it was taken in the early twentieth century under the chilling effect of Jacobson.


Calvin TerBeek on Justice Scalia's Legacy
Michael Ramsey

At Balkinization, Calvin TerBeek (guest-blogging): The Multiple Uses of Justice Scalia (reviewing Scalia Speaks (Christopher Scalia & Edward Whelan, eds.); Bryan Garner's Nino and Me, and Richard Hasen's  The Justice of Contradictions: Antonin Scalia and the Politics of Disruption).  From the introduction:

Shortly after President Clinton’s 1996 re-election, an originalist law professor took to the pages of National Review (NR) to propose that Justice Scalia run for president on the Republican ticket in 2000. “No one else of prominence in America’s public life,” wrote John McGinnis, “makes the case for conservatism better than Scalia.” Scalia was “a matchless expositor of laissez-faire economics, and yet no can doubt that he believes as intensely in social conservatism . . . .” Put differently, Candidate Scalia would be able to uniquely appeal “to social and economic conservatives and make the case for constitutional reform.”

It may be difficult to remember now—especially in the wave of writings following Scalia’s death tightly tying his legacy to originalism and textualism—but as late as December 1996, Scalia, even among conservatives, had yet to emerge as the public face of originalism. In addition to McGinnis’s piece urging Scalia as “the perfect messenger for fundamental rightward political change,” NR writers portrayed the justice as an important conservative voice rather than a champion for originalism. The editors wrote: “as Justice Scalia has been valiantly pointing out in recent dissenting opinions, Supreme Court justices serve primarily as the mirror and mouthpiece of current elite opinion.”

A key part of the argument: 

... Thus, despite attempts by originalists and conservative commentators to create a linear, teleological story about the concomitant rise of Scalia and originalism since the mid-1980s, until the late 1990s (A Matter of Interpretation was not published until 1997 and was excerpted in NR), Scalia was better understood, outside the law schools (and perhaps even within), as a political entrepreneur on behalf of conservatism.

In the two years since his death, Scalia’s legacy is being constructed anew by law professors, conservative commentators, conservative judges, former law clerks, even family members. This process of course was long in the making. As Scalia moved his evangelizing for originalism into higher-salience venues—he had long been an entrepreneur for originalism in the 1980s and 1990s in his numerous law school visits—and as constitutional conservatism maintained its majority on the bench via President Bush’s 2000 and 2004 victories (to say nothing of the continued growth of the Federalist Society and Scalia’s Heller opinion), originalism, textualism, and fidelity to the Constitution have emerged as Scalia’s current legacy.

This is not to say this is empirically incorrect. Instead, the point here is that even within his own lifetime Scalia had two different, though overlapping, “useable pasts” for the conservative movement. The goal of this short review essay, then, is to canvas three recent books that take aim at shaping Scalia’s legacy and discern how the ongoing, endogenous process of legacy-construction is starting to take shape.

And in conclusion:

In sum, Scalia’s legacy is in flux and will continue to be over the long term. As I’ve tried to sketch out here, which constitutive story that ultimately shape what we “know” about Scalia and constitutional development is up for grabs. While we can delineate which uses constitutional conservatives are likely to solidify around, legal liberals might follow Hasen rather than surrendering the field to conservatives. More historical work would be worthwhile in exploring how legal liberals might create their own “useable pasts” about Justice Scalia, especially as his papers become available. Whether Scalia is considered a great, influential, or dangerous justice in the future will be constructed over the long duree. That project should not be taken for granted.


John McGinnis on the Culture of Originalism
Michael Ramsey

At Liberty Law Blog, John McGinnis: The Rise of the Culture of Originalism.  From the introduction:

Constitutional theorists succeed practically only when they change the legal culture.  Jack Balkin has remarked that some legal arguments that were once off the wall can become “on the wall,” i.e. the subject of respectful debate. What constitutional theorists can do is make a whole set of arguments appear on the wall. They work at wholesale rather than retail.

Originalism was a marginal theory when I was in law school. Today it is taken seriously and is moving toward becoming the academic theory to beat. But what is most important practically is that originalism is changing everyday legal culture. That is the greatest significance of the Trump appellate justices. Their legal education occurred when originalism began to be taken seriously. And outside the law schools, it was nurtured by the Federalist Society and thus became part of their ordinary professional life.

We are already seeing the effects of the Trump appellate judges in the originalist methodology of their legal opinions. For instance, in the recent case of Turner v. United States, the issue was whether the right to counsel attached to an accused before indictment at the stage when he was offered a plea by the government — an offer which was to disappear after a set time. Under Supreme Court precedent the answer is clearly no, as the overwhelming majority of the en banc sixth circuit court of appeals held. But John Bush, a newly appointed Trump judge, concurred dubitante only under the compulsion of Supreme Court precedent which he was powerless to change. Judge Bush read the words of the Constitution as informed by their historical meaning to cover the time when a plea bargain was offered.