« April 2018 | Main | June 2018 »

38 posts from May 2018


More on the Second Amendment and Corpus Linguistics
Michael Ramsey

At Language Log, Neal Goldfarb: Corpora and the Second Amendment: Responding to Weisberg on the meaning of "bear arms".  It begins: 

The Originalism Blog has a guest post, by David Weisberg, taking issue with the conclusion in Dennis Baron's Washington Post op-ed that newly available evidence of historical usage shows that in District of Columbia v. Heller, Justice Scalia misinterpreted the phrase keep and bear arms. That's an issue that I wrote about yesterday ("The coming corpus-based reexamination of the Second Amendment") and that I'm going to be dealing with in a series of posts over the next several weeks.

One of Weisberg's arguments concerns a linguistic issue that I'm planning to address, and I think that Weisberg is mistaken. At the risk of getting out ahead of myself, I want to respond to Weisberg briefly now, with a more detailed explanation to come.

And from the core of the argument:

Weisberg frames the issue as relating to the meaning of the verb bear, and he argues that even if "the phrase 'bear arms' was almost always used around the time of the founding in a military context," that would not "that change the primary meaning of the verb 'bear,'" which he describes as meaning carry. That argument will undoubtedly strike most people as perfectly reasonable.

But what has been revealed by corpus linguistics (particularly corpus lexicography) is that Weisberg's framing is wrong. The issue is not what bear means in isolation, it is what the phrase bear arms means. Because the meaning of a word as used in a particular context is very often affected by that context. So words are not necessarily the basic units of meaning. And it is entirely possible that in its most frequent use,  bear arms was not synonymous to carry arms.

Neal Goldfarb also has the very helpful post, mentioned in the quote above: The coming corpus-based reexamination of the Second Amendment.

I think the corpus linguistics analysis of the Second Amendment is going to be a very big deal, and an important test both for corpus linguistics and for gun rights advocates.  (And I'm starting to think that this post is more important than I thought at the time.)


Justice Thomas versus the Exclusionary Rule and Federal Common Law in Collins v. Virginia
Michael Ramsey

In Collins v. Virginia, decided yesterday, the Supreme Court held that a warrantless search of a motorcycle parked on private property violated the Fourth Amendment, and thus that evidence found in the search should be excluded in the prosecution of Collins.  Justice Thomas concurred but objected on originalist grounds to the imposition of the exclusionary rule in state cases.  First he argued that the rule is (as the Court has said) not required by the Constitution (footnotes and some [but not all!] citations omitted):

The assumption that state courts must apply the federal exclusionary rule is legally dubious, and many jurists have complained that it encourages “distort[ions]” in substantive Fourth Amendment law ...


While those who ratified the Fourth and Fourteenth Amendments would agree that a constitutional violation occurred here, they would be deeply confused about the posture of this case and the remedy that Collins is seeking. Historically, the only remedies for unconstitutional searches and seizures were tort suits and self-help.  The exclusionary rule—the practice of deterring illegal searches and seizures by suppressing evidence at criminal trials—did not exist. No such rule existed in “Roman Law, Napoleonic Law or even the Common Law of England.” Burger, Who Will Watch the Watchman? 14 Am. U. L. Rev. 1 (1964). ...

Despite this history, the Court concluded in Mapp v. Ohio, 367 U. S. 643 (1961), that the States must apply the federal exclusionary rule in their own courts. Mapp suggested that the exclusionary rule was required by the Constitution itself.  ... But that suggestion could not withstand even the slightest scrutiny. The exclusionary rule appears nowhere in the Constitution, postdates the founding by more than a century, and contradicts several longstanding principles of the common law. See supra, at 2–3; Cuddihy 759–760; Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 786 (1994); Kaplan, The Limits of the Exclusionary Rule, 26 Stan. L. Rev. 1027, 1030–1031 (1974). 

Recognizing this, the Court has since rejected Mapp’s “‘[e]xpansive dicta’” and clarified that the exclusionary rule is not required by the Constitution.  Davis v. United States, 564 U. S. 229, 237 (2011) (quoting Hudson v. Michigan, 547 U. S. 586, 591 (2006)). ...

But, the concurrence continues, if the exclusionary rule isn't required by the Constitution, how can it be enforced against the states?  Only as, in effect, federal common law -- which Justice Thomas also finds dubious on originalist grounds:

Federal law trumps state law only by virtue of the Supremacy Clause, which makes the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties . . . the supreme Law of the Land,” Art. VI, cl. 2. When the Supremacy Clause refers to “[t]he Laws of the United States made in Pursuance [of the Constitution],” it means federal statutes, not federal common law. Ramsey, The Supremacy Clause, Original Meaning, and Modern Law, 74 Ohio St. L. J. 559, 572–599 (2013) (Ramsey) [Ed.: hey, that sounds familiar!); Clark, Separation of Powers as a Safeguard of Federalism, 79 Texas L. Rev. 1321, 1334–1336, 1338–1367 (2001) (Clark); ...

By referencing laws “made in Pursuance” of the Constitution, the Supremacy Clause incorporates the requirements of Article I, which force
Congress to stay within its enumerated powers, §8, and follow the cumbersome procedures for enacting federal legislation, §7. See Wyeth v. Levine, 555 U. S. 555, 585– 587 (2009) (THOMAS, J., concurring in judgment); 3 J. Story, Commentaries on the Constitution of the United
States §1831, pp. 693–694 (1833); Clark 1334. Those procedures—especially the requirement that bills pass the Senate, where the States are represented equally and Senators were originally elected by state legislatures—safeguard federalism by making federal legislation more difficult to pass and more responsive to state interests. See Ramsey 565; Clark 1342–1343.  Federal common law bypasses these procedures and would not have been considered the kind of “la[w]” that can bind the States under the Supremacy Clause. See Ramsey 564–565, 568, 574, 581; Jay, Origins of Federal Common Law: Part Two, 133 U. Pa. L. Rev. 1231, 1275 (1985).


True, this Court, without citing the Supremacy Clause, has recognized several “enclaves of federal judge-made law which bind the States.” ...  These precedents do not support requiring the States to apply the exclusionary rule. As explained, the exclusionary rule is not rooted in the Constitution or a federal statute. This Court has repeatedly rejected the idea that the rule is in the Fourth and Fourteenth Amendments, expressly or implicitly.  And the exclusionary rule does not implicate any of the special enclaves of federal common law. 

And in conclusion:

In sum, I am skeptical of this Court’s authority to impose the exclusionary rule on the States. We have not yet revisited that question in light of our modern precedents, which reject Mapp’s essential premise that the exclusionary rule is required by the Constitution. We should do so.

Thanks to Justice Thomas for citing my article, among others, and I'm happy to see that my thinking on federal common law is similar to his.  (My article doesn't say anything about the exclusionary rule but I think the Justice is right about its implications).

A note on the merits of Collins: I think this is another case where originalism provides a more definite answer than nonorignalism.  Justice Alito dissented in an nonoriginalist opinion arguing that the actions of the police were reasonable, mainly because they were minimally intrusive.  Quite arguably, he's right under the modern sense of "reasonable."  But as Justice Thomas notes briefly, the historical rule appears to have been that police needed a warrant to search a house or its "curtilage," absent some narrow exceptions not relevant in Collins.  (See my earlier thoughts on Collins here).  On the other hand, as Orin Kerr points out, defining the "curtilage" may sometimes be a problem, and maybe it was more of a problem here than the Court thought: Collins v. Virginia and "the Conception Defining the Curtilage".


A Response to Dennis Baron on Heller
David Weisberg

[Ed.: For this guest post we welcome occasional commentator and originalism critic David Weisberg.]
Dennis Baron’s recent op-ed in the Washington Post [Ed.: noted here] argues that Justice Scalia’s opinion for the majority in D.C. v. Heller is incorrect.  I agree.  (I’ve set forth my argument in “A Unique, Stand-alone Second Amendment Implies that both Heller and McDonald Were Wrongly Decided” on SSRN.)  However, I think Prof. Baron has not provided a sound basis for his conclusion.  In particular, he is plainly mistaken with regard to the definition of the transitive verb “bear,” and he also provides an unsatisfactory interpretation of the Second Amendment as a whole.
The Oxford English Dictionary provides the following primary definition of the transitive verb “bear”: “I. To carry; with its transferred and fig. senses.  1. trans. To support the weight of (anything) whilst moving it from one place to another: to carry.”  This definition, according to the OED, has been valid since before 1000 AD, and is first observed in Beowulf.  Webster’s New Collegiate Dictionary (1981 ed.) provides the following primary definition of the verb “bear”: “1 a : to move while holding up and supporting”.
If a corpus linguistics analysis reveals that the phrase “bear arms” was almost always used around the time of the founding in a military context, would that change the primary meaning of the verb “bear,” which meaning has been in use since before 1000 AD?  This question answers itself.  Around the founding era, people in America were interested in questions of liberty, freedom from tyranny, rebellion and revolution.  One would expect, during such times, that they would be talking and writing about “bearing arms” in a military context, rather than in the context of hunting or target-shooting.  But the context does not change the meaning of the words, or, if it does, it was a change in meaning that apparently both the OED and Webster’s missed.
It is clear from both those definitions that it would be perfectly correct, albeit stilted and un-idiomatic, to say that people hunting rabbits bear arms.  They of course are not bearing arms against rabbits in any sense, but that is not the language of the Second Amendment.  Rabbit-hunters carry or support firearms while moving from place to place, so they are indeed bearing arms, unless, that is, former Justice Souter is correct and both the OED and Webster’s are incorrect regarding the meaning of the transitive verb “bear”.  I’m betting against Justice Souter.
On the more general point, Prof. Baron seems to favor the view that the Second Amendment “protect[s] a collective right to gun ownership connected to service in the militia. This is fairly clear from the text, which says: ‘A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.’ ”  In my view, the fatal flaw here is the absence of any convincing answer to the question: if that is what the framers meant, why isn’t that what they wrote?  That is, why doesn’t the amendment read: “The right of the people to keep and bear arms, for use in a well-regulated state militia, shall not be infringed.”?  They would have saved themselves five words.
Justice John Paul Stevens’ dissent in Heller takes the position favored by Prof. Baron; in my view, Justice Stevens reached the correct result—that is, the D.C. restrictions on firearms were constitutional—but for the wrong reasons.  The arguments supporting my view are in the paper cited in the first paragraph of this note.           


New Book: Written out of History by Senator Mike Lee
Michael Ramsey

Recently published, by Senator Mike Lee: Written Out of History: The Forgotten Founders Who Fought Big Government (Sentinel 2017).  Here is the book description from Amazon: 

In the earliest days of our nation, a handful of unsung heroes—including women, slaves, and an Iroquois chief—made crucial contributions to our republic. They pioneered the ideas that led to the Bill of Rights, the separation of powers, and the abolition of slavery. Yet, their faces haven’t been printed on our currency or carved into any cliffs. Instead, they were marginalized, silenced, or forgotten—sometimes by an accident of history, sometimes by design.
In the thick of the debates over the Constitution, some founders warned about the dangers of giving too much power to the central government. Though they did not win every battle, these anti-Federalists and their allies managed to insert a system of checks and balances to protect the people from an intrusive federal government. Other forgotten figures were not politicians themselves, but by their thoughts and actions influenced America’s story. Yet successive generations have forgotten their message, leading to the creation of a vast federal bureaucracy that our founders would not recognize and did not want.

Senator Mike Lee, one of the most consistent and impassioned opponents of an abusive federal government, tells the story of liberty’s forgotten heroes. In these pages, you’ll learn the true stories of founders such as...

• Aaron Burr who is depicted in the popular musical Hamilton and in history books as a villain, but in reality was a far more complicated figure who fought the abuse of executive power.

• Mercy Otis Warren, one of the most prominent female writers in the Revolution and a protégé of John Adams, who engaged in vigorous debates against the encroachment of federal power and ultimately broke with Adams over her fears of the Constitution.

• Canasatego, an Iroquois chief whose words taught Benjamin Franklin the basic principles behind the separation of powers.

The popular movement that swept Republicans into power in 2010 and 2016 was led by Americans who rediscovered the majesty of the Constitution and knew the stories of Hamilton, Madison, and Washington. But we should also know the names of the contrarians who argued against them and who have been written out of history. If we knew of the heroic fights of these lost founders, we’d never have ended up with a government too big, too powerful, and too unresponsive to its citizens. The good news is that it’s not too late to remember and to return to our first principles. Restoring the memory of these lost individuals will strike a crippling blow against big government.

Via Instapundit.


New Book: Making Habeas Work by Eric Freedman
Michael Ramsey

Recently published, by Eric Freedman (Hofstra): Making Habeas Work: A Legal History (NYU Press 2018).  Here is the book description from the publisher: 

Habeas corpus, the storied Great Writ of Liberty, is a judicial order that requires government officials to produce a prisoner in court, persuade an independent judge of the correctness of their claimed factual and legal justifications for the individual’s imprisonment, or else release the captive. Frequently the officials resist being called to account.  Much of the history of the rule of law, including the history being made today, has emerged from the resulting clashes. 

This book, heavily based on primary sources from the colonial and early national periods and significant original research in the New Hampshire State Archives, enriches our understanding of the past and draws lessons for the present.

Using dozens of previously unknown examples, Professor Freedman shows how the writ of habeas corpus has been just one part of an intricate machinery for securing freedom under law, and explores the lessons this history holds for some of today’s most pressing problems including terrorism, the Guantanamo Bay detentions, immigration, Brexit, and domestic violence.

Exploring landmark cases of the past - like that of John Peter Zenger - from new angles and expanding the definition of habeas corpus from a formal one to a functional one, Making Habeas Work brings to light the stories of many people previously overlooked (like the free black woman Zipporah, defendant in “the case of the headless baby”) because their cases did not bear the label “habeas corpus.”

The resulting insights lead to forward-thinking recommendations for strengthening the rule of law to insure that it endures into the future.

(Thanks to Seth Barrett Tillman for the pointer.)

RELATED: Noted here earlier this year, Habeas Corpus in Wartime (Oxford Univ. Press 2017) by Amanda Tyler (Berkeley).


Illegal Immigration and Congressional Apportionment
Michael Ramsey

At Huffington Post, Sam Levine reports: Alabama Sues To Exclude Undocumented Immigrants From Census Count.  The post references several law professors on the dubiousness of the suit, including me.

Alabama is suing the Trump administration to force the Census Bureau not to count undocumented people as part of the decennial tally used to determine how many seats in Congress each state gets.

The suit signals a continued conservative interest in changing the way the census counts immigrants. In a statement, Rep. Mo Brooks (R-Ala.), one of the plaintiffs in the suit, said apportionment should exclude immigrants and be based on only the citizen population. [Ed.: actually I think the suit is just to exclude people who are in the U.S. unlawfully, not all non-citizens].  Rep. Steve King (R-Iowa) and Kansas Secretary of State Kris Kobach (R) have made similar calls. Missouri lawmakers are considering legislation to base their state legislative districts based only on citizen population.


Every 10 years, the census counts all people in the United States, regardless of their immigration status, and that tally is used as the basis to figure out how many congressional seats each state gets. The 14th Amendment says congressional seats should be apportioned based on simply the number of “persons.”

But in a suit filed Tuesday in federal court in Alabama, Brooks and the state’s Attorney General Steve Marshall (R) argue that in the 18th and 19th centuries, the word “persons” would not have been understood to include undocumented people in the country. They argue that including undocumented immigrants in the count to determine congressional representation unfairly allows states with large undocumented populations to have inflated political representation. Alabama is projected to lose a congressional seat after the next census.

Franita Tolson (USC), Pamela Karlan (Stanford) and I are noted as questioning the basis of the suit.  My reported comment is but truncated but basically accurate.  Here's my full comment to Mr. Levine:

I haven't followed this particular suit but I'm familiar with the issue.  I also haven't looked closely at the historical evidence.  That said, I'm very skeptical that there is historical evidence to support Alabama's position.  The ordinary meaning of person obviously included illegal immigrants at the relevant times.  The framers notoriously added a specific clause to limit the counting of slaves (the 3/5 clause) so they plainly thought that absent that clause slaves would count as "persons" for purposes of apportionment.  In the same clause they also specifically excluded "Indians not taxed" from apportionment.  So again they seemed to be thinking of "person" as having the ordinary all-encompassing meaning, and then putting some limitations on what persons would be counted.  If they'd meant to also limit the apportionment to persons lawfully in the country, they could easily have said so, in the same clause.  True, unlawful immigration wasn't a big issue back then because there were few restrictions on immigration -- but there were some (at the state level) so the issue would not have been beyond their understanding.  Perhaps there is some evidence from commentary at the time that would call this textual analysis into question, but I'm not aware of it.  And surely the burden is on Alabama to explain why individuals ordinarily called persons were not "persons" for this purpose.

On further reflection, I should have made clear that mine is a textual/originalist analysis.  And also on further reflection I still think I'm right, although the analysis may be a bit more complicated.  The operative language is Section 2 of the 14th Amendment (which is taken from the original language of Article I, Section 2, with the 3/5 clause dropped):

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.

If there's any ambiguity here, it's in the question of who are persons "in each State" rather than who are "persons."  I'm confident that there's no relevant historical meaning of "persons" that doesn't include all human beings (and, as I noted in my comments, the 3/5 clause confirms this -- the drafters of the original Art. I Sec. 2 language thought slaves were "persons" and would be counted in full for apportionment unless the text expressed a limitation.)  So unlawful immigrants are clearly "persons" -- the question is whether they are persons "in" the State.  I assume travelers not resident in the state, although obviously persons, are not counted for apportionment purposes because they are not "in" the State for purposes of apportionment, even though they may be literally physically in the state on the date of the census.  Perhaps one could similarly argue that persons unlawfully present, even though resident, are not "in" the state in the constitutional sense.

But I think that interpretation is ruled out by the "Indians not taxed" exclusion.  This phrase referred to tribes not under the jurisdiction of the state and the United States, either legally (by treaty) or practically (because they were beyond effective control).  The existence of this exclusion indicates that the drafters understood that these tribes would be "persons in [the] State" for apportionment purposes unless specifically excluded.  It also shows (as indicated in my comments) that the drafters were thinking about categories of persons to exclude from the count -- and if they had concerns about people unlawfully present, they could have added that exclusion as well.  The Alabama suit tries to add a word the framers left out: "counting the whole number of persons [lawfully] in each State."

This, I emphasize, is a textualist/originalist analysis.  I think it is conclusive (scholars who think originalism doesn't yield definite answers to actual litigated cases are encouraged to show why I'm wrong).

A living Constitution analysis, on the other hand, is much stronger for Alabama.  Although there likely were some persons unlawfully present (under state law) at the time of the Amendment, it was undoubtedly a very small number.  Material restrictions on lawful immigration weren't adopted until later, and the existence of large numbers of undocumented residents is a recent phenomenon.  Thus it made sense for the framers not to bother excluding this category, because it wouldn't materially affect the count and surely wouldn't affect the apportionment.  Now, matters are entirely changed -- it may well be, as Alabama argues, that excluding the category would affect the apportionment.  So perhaps Alabama can argue that, similar to "Indians not taxed" in the nineteenth century, the category of undocumented residents represents a category of persons not a full part of the political entity, and thus appropriately excluded from apportionment as not fully "in" the state.

Of course there are living Constitution arguments in response as well.  The outcome would mostly come down to whether one thought undocumented residents ought to be counted for apportionment as a policy matter.  My point is that a textualist/originalist approach seems to give a more definite and objective answer.  (And note that the two other professors quoted in the article as opposing the suit also give originalist-oriented responses).

(Thanks again to Mr. Levine for letting me know about the suit and getting me thinking about it).



Ilya Somin on Intrinsic and Instrumental Originalism
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: Intrinsic vs. Instrumental Justifications for Originalism.  It begins:

Originalists disagree among themselves about what exactly qualifies as the original meaning that judges and other government officials are required to obey. They also differ on the even more fundamental question of why we should obey the original meaning in the first place. Some believe that adhering to original meaning is inherently valuable, independent of consequences. These people can be called "intrinsicist" originalists. Others advocate originalism for instrumental reasons: they believe that following the original meaning leads to good consequences, or at least better ones than living constitutionalism. The difference between intrinsic and instrumental justifications for originalism has important practical implications, as well as theoretical ones.

The post then examines "Problems with Intrinsicist Justifications for Originalism," identifying several intrinsic justifications, including: 

Finally, some originalists argue that we must obey the original meaning because that is the only way to adhere to the "rule of law." The rule of law means different things to different people. But, at least on several standard conceptions of it, the relationship between the rule of law and originalism is merely a contingent one. Whether originalism promotes the rule of law better than living constitutionalism depends in large part on the specific content of the original meaning.

For example, the rule of law is often defined in contrast to "the rule of men." Whereas the former is based on general, impersonal rules, the latter is subject to the bias and discretion of individual government officials. Whether or not originalism promotes the rule of law in this sense is clearly contingent. Consider a constitution that includes a provision saying that "the meaning of the law is whatever the president says it is," and historical evidence indicates that this clause was meant to give the president unfettered power to define what counts as lawbreaking and punish offenders as he sees fit. In this scenario, adherents of the rule of law defined as the antithesis of the rule of men, would do well to reject originalism and try to give this clause as narrow an interpretation as they can. They should try to minimize its impact in much the same way as liberal Christians and Jews minimize the significance of biblical passages endorsing slavery and the subordination of women. Similar contingent factors affect the connection between originalism and other standard conceptions of the rule of law.

(As an aside at this point, I'll say that it's not clear to me that support of the rule of law is an intrinsic rather than an instrumental justification.  The reasons one would support the rule of law are, I think, typically instrumental).

The next section of the post is titled "Implications of Adopting an Instrumental Justification for Originalism" and begins:

In my view, like that of McGinnis and Rappaport, originalism can only be effectively defended on instrumental grounds. I think the original meaning of the US Constitution protects liberty and several other important values better than any currently feasible alternative is likely to do. And, like them, I believe (at least tentatively) that constitutional rules adopted through supermajority processes are likely to be, on average, better (on consequentialist grounds) than those developed by judges or conventional political majorities.

I will not try to defend these conclusions in any detail here (though I have in part done so previously). I will instead note some important implications of instrumental defenses of originalism, which qualify their scope.

And in conclusion:

In sum, there is good reason to reject intrinsicist justifications of originalism in favor of instrumental ones. But the latter have a number of potentially uncomfortable implications. Of course, the same thing is true for any plausible version of living constitutionalism. No approach to constitutional theory can sidestep difficult questions about the reasons why we should adopt it in the first place.

This is an important and thought-provoking post (inspired by Andrew Coan's important and thought-provoking article noted here).


John McGinnis on Populism and Federalism
Michael Ramsey

At Liberty law Blog, John McGinnis: To Restrain Populism, Revive Federalism.  From the beginning:

[T]here is no doubt the Framers designed the federal government to have more elite elements than the state governments of the time.  The Electoral College was structured to filter the popular will to elect individuals of substantial preexisting reputation.  The Senate also was indirectly elected and its long terms made it more likely that the wealthy would serve. The judiciary was the redoubt of the learned profession of lawyers, representing the cognitive form of elite that was rising in importance in the Framers’ day and has become dominant in our own.

States, in contrast, could be reservoirs of populism. In the critical period between the Articles and the Constitution, they had in fact often reflected populist policies. The Constitution was designed to counteract their worst excesses through giving the more elite federal government power over such matters as interstate commerce and the federal judiciary some control over such matters as the abrogation of contracts. But our system of dual sovereignty assured that populism still had a role to play in the many areas where no institution of the federal government was given power.

And in conclusion:

With the rise of populist figures as ideologically diverse as President Donald Trump and Senator Bernie Sanders, we may well be now witnessing the backlash against the elite element of government that comes from the excessive reduction of the Constitution’s popular element.  If so, the remedy for populism is not to stamp it out, but to restore the elements of our original Constitution that gave it greater play. We need a constitution that will bend to populist winds so that it will not break.


The President, the First and Fourteenth Amendments, and the Take-Care Clause
Chris Green

Recent cases at the Supreme Court, the Ninth Circuit, and the Southern District of New York all pose an important issue that could be clarified with more attention to the Take-Care Clause of Article II.  Trump v. Hawaii, the travel-ban case argued at the Supreme Court last month, featured an Establishment Clause issue added by the Court itself. Yet the First Amendment applies only to Congress, not executive officers. The DACA case at the Ninth Circuit, Regents v. DHS, featured an argument under the Equal Protection Clause, which doesn't even apply to Congress, and certainly not the President. Finally, today, in Knight Institute v. Trump, SDNY Judge Buchwald held that the President violated the First Amendment by blocking particular users on Twitter.

None of the litigants or amici in these cases has couched the arguments against presidential discrimination in terms of the Take-Care Clause: "he shall take Care that the Laws be faithfully executed." But this is a much better home, textually, for allegations of unconstitutionally discriminatory presidential behavior than the First or Fourteenth Amendments. As readers of this blog will surely know quite well, constitutional interpretation is sometimes difficult. But interpretive issues do not get any easier than whether "Congress" or "State" includes the President.

We might imagine a hypothetical: in 1790, would it have been constitutional for President Washington to have enforced the criminal law only against his political enemies (as few as they were at the time)? This seems a paradigmatic violation of the take-care duty: to be "faithful"--to be bona fide--means, in part, not to be invidiously discriminatory. Nicholas Quinn Rosencranz has suggested that "the Take Care Clause ... reflects a principle of nondiscrimination (on the basis of speech and religion, among other things) in the execution of law."

The Take-Care Clause has, alas, received almost no attention in Trump v. Hawaii, Regents v. DHS, or Knight Institute. This is unfortunate. None of these cases, however, is final. The Supreme Court has another month to think about including a discussion of the take-care duty in the Hawaii case, and the Ninth and Second Circuits still have the chance to do the same in Regents and Knight. The issue of the textual foundations for the President's nondiscrimination duty is surely worth at least a learned footnote, or three!

Dennis Baron on Scalia, Heller and Corpus Linguistics
Michael Ramsey

In the Washington Post, Dennis Baron (Illinois, English/Linguistics): Antonin Scalia was wrong about the meaning of ‘bear arms’.  Key excerpts:

In his opinion in Heller, Justice Antonin Scalia, who said that we must understand the Constitution’s words exactly as the framers understood them, disconnected the right to keep and bear arms from the need for a well-regulated militia, in part because he concluded that the phrase “bear arms” did not refer to military contexts in the founding era.


But Scalia was wrong. Two new databases of English writing from the founding era confirm that “bear arms” is a military term. Non-military uses of “bear arms” are not just rare — they’re almost nonexistent.

A search of Brigham Young University’s new online Corpus of Founding Era American English, with more than 95,000 texts and 138 million words, yields 281 instances of the phrase “bear arms.” BYU’s Corpus of Early Modern English, with 40,000 texts and close to 1.3 billion words, shows 1,572 instances of the phrase. Subtracting about 350 duplicate matches, that leaves about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful don’t refer to war, soldiering or organized, armed action. These databases confirm that the natural meaning of “bear arms” in the framers’ day was military.

I would like to hear more about the eighteenth century use of the full phrase "keep and bear arms."  But clearly corpus linguistics analysis is not always going to produce result originalists expect or are happy with.

Thanks to Neal Goldfarb (LAWnLinguistics) for the pointer.  He has a helpful background post on the BYU project here: The BYU Law corpora (updated).  It begins:

I’d imagine that most people who’ve been actively involved with corpus linguistics are familiar with the BYU corpora—a collection of web-accessible corpora created by Brigham Young University linguistics professor Mark Davies. These corpora (and BYU’s corpus-linguistics program more generally) have played an essential part in the development of what I’ll call the corpus-linguistic turn in legal interpretation. The BYU corpora served as my entry-point into corpus linguistics, and they have provided the corpus data that has been used in most of the law-and-corpus-linguistics work that has been done to date. And beyond that, the BYU Law School has played an enormous role, in a variety of ways, in Law and Corpus Linguistics becoming a thing.

One of the things that the law school has been doing has been happening largely behind the scenes. For the past two or three years, people there have been developing the Corpus of Founding Era American English (COFEA)—a historical corpus that is intended as resource for studying language usage in the time leading up to the drafting and ratification of the U.S. Constitution. At this year’s conference on law and corpus linguistics (the third such conference, all of them hosted by the BYU Law School), we were given a preview of COFEA. And via a tweet by the law school’s dean, Gordon Smith, I’ve now learned that a beta version of COFEA is up and available for public playing-around-with, as are beta versions of two other corpora: the Corpus of Early Modern English and the Corpus of Supreme Court of the United States.