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43 posts from June 2018


More Supreme Court Originalism (Part 2)
Michael Ramsey

In addition to Carpenter v. United States, discussed in my prior post, two other Supreme Court cases from yesterday had extensive originalist discussions.

First, in Ortiz v. United States, the Court held that it had jurisdiction to hear appeals from non-Article III military courts.  Ortiz was convicted by a military court and appealed, but an enterprising University of Virginia law professor, Aditya Bamzai, objected.  As amicus curiae, Professor Bamzai argued that the Court lacked jurisdiction because (a) there was no appellate jurisdiction because the military court was really an executive rather than a judicial entity, and (b) there was no original jurisdiction because the Constitution did not provide it and (per Marbury) Congress cannot expand original jurisdiction.

The question split the Court's originalists.  Justice Kagan, writing for seven Justices, rejected this objection without much originalist analysis.  Justice Thomas concurred at length, explaining:

I join the Court’s opinion in full, which persuasively explains why petitioner’s statutory and constitutional arguments lack merit. I also agree that the statute giving this Court appellate jurisdiction to review the decisions of the Court of Appeals for the Armed Forces (CAAF), 28 U. S. C. §1259, complies with Article III of the Constitution. I write separately to explain why that conclusion is consistent with the Founders’ understanding of judicial power—specifically, the distinction they drew between public and private rights.  [He explained this view over the next 10 pages.]

Justice Alito, joined by Justice Gorsuch, dissented at even greater length on the jurisdictional point, basically accepting Professor Bamzai's argument.  From the introduction:

Today’s decision is unprecedented, and it flatly violates the unambiguous text of the Constitution. Although the arguments in the various opinions issued today may seem complex, the ultimate issue is really quite simple. The Court and the concurrence say that Congress may confer part of the judicial power of the United States on an entity that is indisputably part of the Executive Branch. But Article III of the Constitution vests “[t]he Judicial Power of the United States”—every single drop of it—in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” in compliance with that Article. A decision more contrary to the plain words of the Constitution is not easy to recall.

As an aside, this argument seems strongly to suggest that similarly Article II of the Constitution vests “[t]he executive Power"—"every single drop of it"—in the President; see Morrison v. Olson (Scalia, dissenting).  Also, "judicial" in "judicial Power" in Article III is not capitalized.  But I digress.

Justice Alito's dissent continues: 

The understanding of appellate jurisdiction embodied in Article III has deep roots. Blackstone explained that a “court of appeal” has jurisdiction only to “reverse or affirm the judgment of the inferior courts.” 3 W. Blackstone, Commentaries on the Laws of England 411 (1768) (Blackstone) (emphasis added). Echoing Blackstone, we have held that our appellate jurisdiction permits us to act only as “[a] supervising Court, whose peculiar province it is to correct the errors of an inferior Court.” Cohens v. Virginia, 6 Wheat. 264, 396 (1821) (Marshall, C. J.). And we have reiterated that “[a]n appellate jurisdiction necessarily implies some judicial determination, some judgment, decree, or order of an inferior tribunal, from which an appeal has been taken.” The Alicia, 7 Wall. 571, 573 (1869); Webster v. Cooper, 10 How. 54, 55 (1850); 3 J. Story, Commentaries on the Constitution of the United States §916, p. 652 (1833) (Story).

Those principles make it easy to understand what Marbury meant when it held that “[i]t is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause.” 1 Cranch, at 175. The cause (or case) must have been created previously, somewhere else. And as Blackstone suggested, what “creates” a “case” in the relevant sense—that is, what transforms a dispute into a “case” that an appellate court has jurisdiction to resolve—is the prior submission of the dispute to a tribunal that is lawfully vested with judicial power. 

And since the military courts -- not being Article III courts -- can't be vested with the "judicial Power of the United States," there can't be an appeal from them directly to the Supreme Court.

Second, in Currier v. Virginia, the Court rejected a double jeopardy objection.  Justice Gorsuch, writing for five Justices, found the defendant had waived the objection by consenting to two separate trials for related offenses.  Writing for only four (Roberts, Thomas, Alito and himself; Kennedy thought the waiver was enough to decide the case), Gorsuch went on to reject double jeopardy as a possible objection where the offenses were related but not identical:

Mr. Currier’s problems begin with the text of the Double Jeopardy Clause. As we’ve seen, the Clause speaks not about prohibiting the relitigation of issues or evidence but offenses. Contrast this with the language of the Reexamination Clause. There, the Seventh Amendment says that “[i]n Suits at common law . . . no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.” (Emphasis added.) Words in one provision are, of course, often understood “by comparing them with other words and sentences in the same instrument.” 1 J. Story, Commentaries on the Constitution of the United States §400, p. 384 (1833). So it’s difficult to ignore that only in the Seventh Amendment—and only for civil suits—can we find anything resembling contemporary issue preclusion doctrine.

What problems the text suggests, the original public understanding of the Fifth Amendment confirms. The Double Jeopardy Clause took its cue from English common law pleas that prevented courts from retrying a criminal defendant previously acquitted or convicted of the crime in question. See Scott, 437 U. S., at 87; 4 W. Blackstone, Commentaries on the Laws of England 329–330 (1769). But those pleas barred only repeated “prosecution for the same identical act and crime,” not the retrial of particular issues or evidence. Id., at 330 (emphasis added). As Sir Matthew Hale explained:

“If A. commit a burglary . . . and likewise at the same time steal goods out of the house, if he be indicted of larciny for the goods and acquitted, yet he may be indicted for the burglary notwithstanding the acquittal. And è converso, if indicted for the burglary and acquitted, yet he may be indicted of the larciny, for they are several offenses, tho committed at the same time.” 2 M. Hale, The History of the Pleas of the Crown, ch. 31, pp. 245–246 (1736 ed.).

Both English and early American cases illustrate the point. In Turner’s Case, 30 Kel. J. 30, 84 Eng. Rep. 1068 (K. B. 1663), for example, a jury acquitted the defendant of breaking into a home and stealing money from the owner. Even so, the court held that the defendant could be tried later for the theft of money “stolen at the same time” from the owner’s servant. Ibid. In Commonwealth v. Roby, 12 Pickering 496 (Mass. 1832), the court, invoking Blackstone, held that “[i]n considering the identity of the offence, it must appear by the plea, that the offence charged in both cases was the same in law and in fact.” Id., at 509. The court explained that a second prosecution isn’t precluded “if the offences charged in the two indictments beperfectly distinct in point of law, however nearly they may be connected in fact.” Ibid. (emphasis added). Another court even ruled “that a man  acquitted for stealing the horse hath yet been arraigned and convict for stealing the saddle, tho both were done at the same time.” 2 Hale, supra, at 246. These authorities and many more like them demonstrate that early courts regularly confronted cases just like ours and expressly rejected the notion that the Double Jeopardy Clause barred the relitigation of issues or facts. See also Grady v. Corbin, 495 U. S. 508, 533–535 (1990) (Scalia, J., dissenting) (collecting authorities); 2 W. Hawkins, Pleas of the Crown, ch. 35, p. 371 (1726 ed.); 1 J. Chitty, Criminal Law 452–457 (1816); M. Friedland, Double Jeopardy 179, and n. 2 (1969). Any suggestion that our case presents a new phenomenon, then, risks overlooking this long history. See post, at 4–5 (GINSBURG, J., dissenting).

More Supreme Court Originalism (and Non-Originalism): Carpenter v. United States
Michael Ramsey

Yesterday's decisions from the Supreme Court contain some discussions of interest to originalist scholars.  First, in Carpenter v. United States (the cell phone data case).  Chief Justice Roberts opens his majority opinion (for five Justices: himself, Breyer, Ginsburg, Sotomakor and Kagan) with a nod to the Founding era: 

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The “basic purpose of this Amendment,” our cases have recognized,“is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.” Camara v. Municipal Court of City and County of San Francisco, 387 U. S. 523, 528 (1967). The Founding generation crafted the Fourth Amendment as a “response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 27). In fact, as John Adams recalled, the patriot James Otis’s 1761 speech condemning writs of assistance was “the first act of opposition to the arbitrary claims of Great Britain” and helped spark the Revolution itself. Id., at ___–___ (slip op., at 27–28) (quoting 10 Works of John Adams 248 (C. Adams ed. 1856)). 


We have kept this attention to Founding-era understandings in mind when applying the Fourth Amendment to innovations in surveillance tools. As technology has enhanced the Government’s capacity to encroach upon areas normally guarded from inquisitive eyes, this Court has sought to “assure[ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34 (2001). For that reason, we rejected in Kyllo a “mechanical interpretation” of the Fourth Amendment and held that use of a thermal imager to detect heat radiating from the side of the defendant’s home was a search. Id., at 35. Because any other conclusion would leave homeowners “at the mercy of advancing technology,” we determined that the Government—absent a warrant—could not capitalize
on such new sense-enhancing technology to explore what was happening within the home. Ibid.

Likewise in Riley, the Court recognized the “immense storage capacity” of modern cell phones in holding that police officers must generally obtain a warrant before searching the contents of a phone. 573 U. S., at ___ (slip op., at 17). We explained that while the general rule allowing warrantless searches incident to arrest “strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to” the vast store of sensitive information on a cell phone. Id., at ___ (slip op., at 9). 

The strongest originalism is in the dissents, however -- especially by Justices Thomas, Alito and Gorsuch (Justice Kennedy also dissented, principally on doctrinal grounds).  From Thomas's dissent:

This case should not turn on “whether” a search occurred.  It should turn, instead, on whose property was searched. The Fourth Amendment guarantees individuals the right to be secure from unreasonable searches of “their persons, houses, papers, and effects.” (Emphasis added.) In other words, “each person has the right to be secure against unreasonable searches . . . in his own person, house, papers, and effects.” Minnesota v. Carter, 525 U. S. 83, 92 (1998) (Scalia, J., concurring). By obtaining the cell-site records of MetroPCS and Sprint, the Government did not search Carpenter’s property. He did not create the records, he does not maintain them, he cannot control them, and he cannot destroy them. Neither the terms of his contracts nor any provision of law makes the records his. The records belong to MetroPCS and Sprint.


The more fundamental problem with the Court’s opinion, however, is its use of the “reasonable expectation of privacy” test, which was first articulated by Justice Harlan in Katz v. United States, 389 U. S. 347, 360–361 (1967) (concurring opinion). The Katz test has no basis in the
text or history of the Fourth Amendment. And, it invites courts to make judgments about policy, not law. Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence. I respectfully dissent.

The dissent continues with a lengthy originalist attack on Katz and the "reasonable expectation of privacy" test, beginning: 

The Katz test distorts the original meaning of “searc[h]”—the word in the Fourth Amendment that it purports to define, see ante, at 5; Smith, supra. Under the Katz test, the government conducts a search anytime it violates someone’s “reasonable expectation of privacy.”That is not a normal definition of the word “search.” At the founding, “search” did not mean a violation of someone’s reasonable expectation of privacy. The word was probably not a term of art, as it does not appear in legal dictionaries from the era. And its ordinary meaning was the same as it is today: “‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.’” Kyllo v. United States, 533 U. S. 27, 32, n. 1 (2001) (quoting N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)); accord, 2 S. Johnson, A Dictionary of the English Language (5th ed. 1773) (“Inquiry by looking into every suspected place”); N. Bailey, An Universal Etymological English Dictionary (22d ed. 1770) (“a seeking after, a looking for, &c.”); 2 J. Ash, The New and Complete Dictionary of the English Language (2d ed. 1795) (“An enquiry, an examination, the act of seeking, an enquiry by looking into every suspected place; a quest; a pursuit”); T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796) (similar). The word “search” was not associated with “reasonable expectation of privacy” until Justice Harlan coined that phrase in 1967. The phrase “expectation(s) of privacy” does not appear in the pre-Katz federal or state case reporters, the papers of prominent Founders, early congressional documents and debates, collections of early American English texts, or early American newspapers. 

Justice Alito's dissent focused on the historical foundations of the third-party doctrine: 

The order in this case was the functional equivalent of a subpoena for documents, and there is no evidence that these writs were regarded as “searches” at the time of the founding. Subpoenas duces tecum and other forms of compulsory document production were well known to the
founding generation. Blackstone dated the first writ of subpoena to the reign of King Richard II in the late 14th century, and by the end of the 15th century, the use of such writs had “become the daily practice of the [Chancery] court.” 3 W. Blackstone, Commentaries on the Laws of England 53 (G. Tucker ed. 1803) (Blackstone). Over the next 200 years, subpoenas would grow in prominence and power in tandem with the Court of Chancery, and by the end of Charles II’s reign in 1685, two important innovations had occurred.

First, the Court of Chancery developed a new species of subpoena. Until this point, subpoenas had been used largely to compel attendance and oral testimony from witnesses; these subpoenas correspond to today’s subpoenas ad testificandum. But the Court of Chancery also improvised a new version of the writ that tacked onto a regular subpoena an order compelling the witness to bring certain items with him. By issuing these so-called subpoenas duces tecum, the Court of Chancery could compel the production of papers, books, and other forms of physical evidence, whether from the parties to the case or from third parties. Such subpoenas were sufficiently commonplace by 1623 that a leading treatise on the practice of law could refer in passing to the fee for a “Sub pœna of Ducas tecum” (seven shillings and two pence) without needing to elaborate further. T. Powell, The Attourneys Academy 79 (1623). Subpoenas duces tecum would swell in use over the next century as the rules for their application became ever more developed and definite. See, e.g., 1 G. Jacob, The Compleat Chancery-Practiser 290 (1730) (“The Subpoena duces tecum is awarded when the defendant has confessed by his Answer that he hath such Writings in his Hands as are prayed by the Bill to be discovered or brought into Court”).

Second, although this new species of subpoena had its origins in the Court of Chancery, it soon made an appearance in the work of the common-law courts as well. One court later reported that “[t]he Courts of Common law . . . employed the same or similar means . . . from the time of Charles the Second at least.” Amey v. Long, 9 East. 473, 484, 103 Eng. Rep. 653, 658 (K. B. 1808). 

After several more pages of history:

Talk of kings and common-law writs may seem out of place in a case about cell-site records and the protections afforded by the Fourth Amendment in the modern age. But this history matters, not least because it tells us what was on the minds of those who ratified the Fourth Amendment and how they understood its scope. That history makes it abundantly clear that the Fourth Amendment, as originally understood, did not apply to the compulsory production of documents at all.

The Fourth Amendment does not regulate all methods by which the Government obtains documents. Rather, it prohibits only those “searches and seizures” of “persons, houses, papers, and effects” that are “unreasonable.” Consistent with that language, “at least until the latter half of the 20th century” “our Fourth Amendment jurisprudence was tied to common-law trespass.” United States v. Jones, 565 U. S. 400, 405 (2012). So by its terms, the Fourth Amendment does not apply to the compulsory production of documents, a practice that involves neither any physical intrusion into private space nor any taking of property by agents of the state.

Finally, Justice Gorsuch rejected both the third party doctrine and the reasonable expectation of privacy:

From the founding until the 1960s, the right to assert a Fourth Amendment claim didn’t depend on your ability to appeal to a judge’s personal
sensibilities about the “reasonableness” of your expectations or privacy. It was tied to the law. Jardines, 569 U. S., at 11; United States v. Jones, 565 U. S. 400, 405 (2012). The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” True to those words and their original understanding, the traditional approach asked if a house, paper or effect was yours under law. No more was needed to trigger the Fourth Amendment. Though now often lost in Katz’s shadow, this traditional understanding persists. Katz only “supplements, rather than displaces the traditional property based understanding of the Fourth Amendment.” Byrd, 584 U. S., at ___ (slip op., at 7) (internal quotation marks omitted); Jardines, supra, at 11 (same); Soldal v. Cook County, 506 U. S. 56, 64 (1992) (Katz did not “snuf[f] out the previously recognized protection for property under the Fourth Amendment”).

Beyond its provenance in the text and original understanding of the Amendment, this traditional approach comes with other advantages. Judges are supposed to decide cases based on “democratically legitimate sources of law”—like positive law or analogies to items protected by the enacted Constitution—rather than “their own biases or personal policy preferences.” Pettys, Judicial Discretion in Constitutional Cases, 26 J. L. & Pol. 123, 127 (2011). A Fourth Amendment model based on positive legal rights “carves out significant room for legislative participation in the Fourth Amendment context,” too, by asking judges to consult what the people’s representatives have to say about their rights. Baude & Stern, 129 Harv. L. Rev., at 1852. Nor is this approach hobbled by Smith and Miller, for those cases are just limitations on Katz, addressing only the question whether individuals have a reasonable expectation of privacy in materials they share with third parties. Under this more traditional approach, Fourth Amendment protections for your papers and effects do not automatically disappear just because you share them with third parties.

Plus a cite to my colleague Donald Dripps, in response to Justice Alito:

It may be that, as an original matter, a subpoena requiring the recipient to produce records wasn’t thought of as a “search or seizure” by the government implicating the Fourth Amendment, see ante, at 2–12 (opinion of ALITO, J.), but instead as an act of compelled self-incrimination
implicating the Fifth Amendment, see United States v. Hubbell, 530 U. S. 27, 49–55 (2000) (THOMAS, J., dissenting); Nagareda, Compulsion “To Be a Witness” and the Resurrection of Boyd, 74 N. Y. U. L. Rev. 1575, 1619, and n. 172 (1999). But the common law of searches and seizures does not appear to have confronted a case where private documents equivalent to a mailed letter were entrusted to a bailee and then subpoenaed. As a result, “[t]he common-law rule regarding subpoenas for documents held by third parties entrusted with information from the target is . . . unknown and perhaps unknowable.” Dripps, Perspectives on The Fourth Amendment Forty Years Later: Toward the Realization of an Inclusive Regulatory Model, 100 Minn. L. Rev. 1885, 1922 (2016).

And in conclusion, looking to the next case:

Before the district court and court of appeals, Mr. Carpenter pursued only a Katz “reasonable expectations” argument. He did not invoke the law of property or any analogies to the common law, either there or in his petition for certiorari. Even in his merits brief before this Court, Mr. Carpenter’s discussion of his positive law rights in cell-site data was cursory. He offered no analysis, for example, of what rights state law might provide him in addition to those supplied by §222. In these circumstances, I cannot help but conclude—reluctantly—that Mr. Carpenter forfeited perhaps his most promising line of argument.

Unfortunately, too, this case marks the second time this Term that individuals have forfeited Fourth Amendment arguments based on positive law by failing to preserve them. See Byrd, 584 U. S., at ___ (slip op., at 7). Litigants have had fair notice since at least United States v. Jones (2012) and Florida v. Jardines (2013) that arguments like these may vindicate Fourth Amendment interests even where Katz arguments do not. Yet the arguments have gone unmade, leaving courts to the usual Katz handwaving. These omissions do not serve the development of a sound or fully protective Fourth Amendment jurisprudence. 

That's a lot of originalism (each of Thomas, Alito and Gorsuch's dissents is about the same length as the majority opinion).


Two Sort-Of Originalist Outcomes
Michael Ramsey

Yesterday the Supreme Court decided, among other cases, Lucia v. SEC and South Dakota v.  Wayfair, Inc.  Neither majority opinion (by Justices Kagan and Kennedy, respectively) is originalist.  But arguably the results are.

In Lucia, the Court held that the Securities and Exchange Commission's Administrative Law Judges are officers of the United States and thus must be appointed in accordance with the appointments clause.  The majority said the outcome was required by the prior decision in Freytag v. Commissioner (1991) [aside:  I have experience with Freytag.  It's too much of a mess to require anything, although it does support the majority].  Justice Thomas concurred, joined by Justice Gorsuch, relying on Jennifer Mascott's originalist account of "officers" [congratulations to Professor Mascott]: 

While precedents like Freytag discuss what is sufficient to make someone an officer of the United States, our precedents have never clearly defined what is necessary. I would resolve that question based on the original public meaning of “Officers of the United States.” To the Founders, this term encompassed all federal civil officials “‘with responsibility for an ongoing statutory duty.’” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (THOMAS, J., concurring) (slip op., at 4); Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 564 (2018) (Mascott).

The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty. See Mascott 454. “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. Based on how the Founders used it and similar terms, the phrase “of the United States” was merely a synonym for “federal,” and the word “Office[r]” carried its ordinary meaning. See id., at 471–479. The ordinary meaning of “officer” was anyone who performed a continuous public duty. See id., at 484–507; e.g., United States v. Maurice, 26 F. Cas. 1211, 1214 (No. 15,747) (CC Va. 1823) (defining officer as someone in “‘a public charge or employment’” who performed a “continuing” duty); 8 Annals of Cong. 2304–2305 (1799) (statement of Rep. Harper) (explaining that the word officer “is derived from the Latin word officium” and “includes all persons holding posts which require the performance of some public duty”). For federal officers, that duty is “established by Law”—that is, by statute. Art. II, §2, cl. 2. The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse). See Mascott 484–507. Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. See id., at 507–545. Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. See 15 U. S. C. §78d–1(a); 17 CFR §§200.14, 200.30– 9 (2017). As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.

In short, the administrative law judges of the Securities Exchange Commission are “Officers of the United States” under the original meaning of the Appointments Clause. They have “‘responsibility for an ongoing statutory duty,’” which is sufficient to resolve this case. SW General, 580 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4). Because the Court reaches the same conclusion by correctly applying Freytag, I join its opinion.

I agree.  Professor Mascott's article is very persuasive on this point.

In Wayfair, the Court held that the dormant commerce clause does not bar states from collecting taxes on sales made by out-of-state companies to in-state buyers, overruling Quill Corp.  v. North Dakota (1992) and National Bellas Hess, Inc. v. Department of Revenue of Ill. (1967).  Justice Thomas filed a brief concurrence, basically apologizing for his vote with the majority in Quill, and commenting: 

a quarter century of experience has convinced me that Bellas Hess and Quill “can no longer be rationally justified.” 504 U. S., at 333. The same is true for this Court’s entire negative Commerce Clause jurisprudence. See Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___ (2015) (THOMAS, J., dissenting) (slip op., at 1). Although I adhered to that jurisprudence in Quill, it is never too late to “surrende[r] former views to a better considered position.” McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (Jackson, J., concurring).

Justice Gorsuch also concurred briefly, observing:

... My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day. See Energy & Environment Legal Inst. v. Epel, 793 F. 3d 1169, 1171 (CA10 2015); Comptroller of Treasury of Md. v. Wynne, 575 U. S. ___, ___–___ (2015) (Scalia, J., dissenting) (slip op., at 1–3); Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610–620 (1997) (THOMAS, J., dissenting). Today we put Bellas Hess and Quill to rest and rightly end the paradox of condemning interstate discrimination in the national economy while promoting it ourselves.

Again, I agree.  An originalist account of the dormant commerce clause generally is a challenging project.  My sometime co-author Brannon Denning has convinced me that there may be something to be said for its anti-discrimination principle.  But as Justice Gorsuch says, the Court-created Quill rule was the opposite of an anti-discrimination principle; it required states to treat out-of-state sellers better than in-state sellers (by not taxing them).

Thus both cases are part of the project of gradually bringing constitutional law back to the Constitution's original meaning.  First, both majority opinions depended on the votes of Justices Thomas and Gorsuch.  Second, Thomas and Gorsuch made clear that their votes arose from an originalist assessment.  And third, I suspect that at least some of the other Justices were influenced by the originalist foundations of the winning arguments, even if the majority opinions were more doctrinal in nature.  One can see these cases as involving what Randy Barnett has called the "gravitational force of originalism." 


Gorsuch and the Sense-Reference Distinction
Chris Green

Justice Gorsuch's opinion for the Court today in Wisconsin Central Ltd. v. United States has a nice little passage at the end distinguishing between meaning and application:

This hardly leaves us, as the dissent worries, “trapped in a monetary time warp, forever limited to those forms of money commonly used in the 1930’s.” ... While every statute’s meaning is fixed at the time of enactment, new applications may arise in light of changes in the world. So “money,” as used in this statute, must always mean a “medium of exchange.” But what qualifies as a “medium of exchange” may depend on the facts of the day. Take electronic transfers of paychecks. Maybe they weren’t common in 1937, but we do not doubt they would qualify today as “money remuneration” under the statute’s original public meaning. The problem with the government’s and the dissent’s position today is not that stock and stock options weren’t common in 1937, but that they were not then—and are not now—recognized as mediums of exchange. 

While the Court does not cite the case, this passage is strikingly similar, even down to the italicization of "meaning" and "application," to Euclid v. Ambler Realty from 1926 (analyzed, e.g., here at 574-76):

[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.... [A] degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles...


Epstein on Self Pardons
Mike Rappaport

Note: I posted this on the Liberty Law Blog about 10 days ago, before much of the subsequent commentary here and elsewhere on the issue, but I thought I would post here anyway.  

In the Wall Street Journal, eminent law professor Richard Epstein, who is certainly not a Trump partisan, argues that the President can pardon himself. While Epstein strongly believes that the President can pardon himself, I am not sure what the answer is – but based on the existing evidence, I lean towards the view that the President cannot do so. Yet, I do agree with Epstein that an attempted self pardon by President Trump (or any President) – whether it turns out to be deemed legal or not by the courts – is not an impeachable offense.

Epstein’s first and primary argument is textual. The Pardon Clause provides the President with the power to “grant . . . pardons for offenses against the United States.” It does not say anything about the President not being able to pardon himself. That is a powerful argument, and were the language entirely clear, I would agree with Epstein that that settles the matter. But the language is not clear.

It is not clear what the power to pardon means. One possibility is that it simply means the power to grant anyone absolution from the effects of being convicted of a crime. But another possibility is that the power refers to the King of England’s power under English law. And it is possible that King’s power did not extend to pardoning himself.

We do not have direct evidence on the King’s self pardon power. But no King ever pardoned himself. The reason appears to be that, under English law, the King could not be touched by legal process and therefore he did not need the power to pardon himself. But simply because he did not need the power (although the President might) does not mean that the King had the power. So the question is uncertain.

To my mind, this creates something of an ambiguity about the meaning of the power to pardon. It could have included self pardons, but it might not have. Since the term is ambiguous, Epstein’s textual argument does not answer the question.

How, then, should we resolve this ambiguity? One way is to consider the principles of the law that existed at the time. One such principle was that a person should not be a judge in his own case.  If that is the case, then the President does not have the power to pardon himself, because it would involve judging his own case.

Epstein’s acknowledges this argument, but responds that the power to pardon does not involve judging. True enough, but not really that significant. Pardoning a person is very similar to judging a person, and it is quite likely that the Framers’ generation would have understood the principle against judging yourself also to apply to pardoning yourself. Thus, I lean towards resolving the ambiguity against the self pardoning power.

But I do agree with Epstein about one thing. If President Trump does choose to pardon himself, that is not an impeachable offense. The answer to the self pardon issue is not clear and asserting a contested power is usually not impeachable. Part of the reason President Andrew Johnson was not convicted during his impeachment trial was the belief that he was challenging an unresolved constitutional issue. The same could be said of President Trump.

Of course, that a self pardon is not an impeachable offense does not mean that the House of Representatives could not conclude that the actions for which the President pardoned himself constituted an impeachable offense. It is entirely appropriate for the Congress to use the impeachment power to remove a President who had behaved improperly. But pardoning himself – by itself – is not an improper action.


Over at the Originalism Blog, Mike Ramsey discusses the arguments of Eric Muller and Andrew Hyman that the power to grant pardons suggests that a self pardon is not permissible because one does not grant things to oneself.  Muller uses an analysis of word usage from the 18th century to conclude that while “give myself” was a not uncommon usage, “grant myself” was an uncommon usage.

This is an interesting argument.  If one accept’s Muller’s claim, it adds to the case against self pardons.  It is true that the idea that one cannot grant something to oneself is a pretty subtle way to convey an idea.  But it still counts.  More importantly, I think, is that it may reinforce the argument about the King not having the self pardon power under English law.  The Constitution may have used the word grant because it was thought that the pardon power did not cover self pardons.  Thus, the “grant” argument and the “King’s power” may reinforce one another.

That said, I would like to see the grant argument explored further.  There are important methodological questions involved in these types of usage arguments.  If some people used the phrase “grant myself” but it was uncommon, which way does that cut?  If people sometimes used the term that way, that seems suggest that the term did not imply that grants could not be made to oneself.  This would be especially the case if there were other reasons why the usage was uncommon.

Timbs v. Indiana
Andrew Hyman

Co-blogger Chris Green is correct that substantive due process is not a valid basis for incorporating the Excessive Fines Clause against the states, and he is also correct that using the Privileges or Immunities Clause (PIC) would be a valid way to do it.  But getting judges to use PIC instead of substantive due process would be very difficult by being so ambiguous about what PIC means.

Chris Green suggests for SCOTUS to acknowledge that one of the four most plausible interpretations of PIC is that it protects “morally-genuine rights.”   In my view, such an interpretation is implausible as an original matter, and dangerously so because it would basically authorize the Court majority to substitute its sense of morality in place of the good (or bad) sense of hundreds of millions of voters and legislators regarding every issue that the Court majority believes is too important for the American people to deal with.  Moreover, the strategy of being ambiguous about the meaning and scope of PIC did not work out well in McDonald v. Chicago, and it probably would not work out well in Timbs v. Indiana.

Here are the four most plausible interpretations of what PIC protects per Chris Green: “(a) rights in the Bill of Rights or elsewhere in the text of the federal constitution as limits on the federal government, (b) rights prevalent in 1868, when the Fourteenth Amendment was adopted, (c) morally-genuine rights, and (d) rights prevalent today, at the time we are applying the Clause.”  In my view, (b), (c), and (d) are all much less plausible than (e): longstanding fundamental rights of U.S. citizens that federal law has protected throughout federal jurisdiction for many generations including today.  This interpretation (e) parallels the very longstanding, correct, and prevalent understanding of the Comity Clause in Article IV (also called the Privileges and Immunities Clause); the Comity Clause extends rights that are already recognized but only if those rights have been enjoyed by citizens during many preceding generations.  This understanding of the Comity Clause is a reasonable reading of the text of that Clause, consistent with the famous reading by Justice Washington upon whom the 39th Congress heavily relied in 1866, and PIC can be read in a parallel way.  

I have some uncertainty as between (a) and (e), but they are both way more plausible than (b), (c), or (d).  After all, (b) and (c) do not require prevalence today, (c) and (d) do not require any long-term prevalence, and none of (b), (c), or (d) focus on prevalence in federal rather than state law even though the language of PIC plainly focuses on rights emanating from federal rather than state citizenship.

Telling the Court that PIC means either (a) or (e) would cut the ambiguity in half.   It would thus reduce the Court’s trepidation, and enhance the chances that the presently-defunct PIC will be resuscitated.

MICHAEL RAMSEY ADDS:  More on Timbs from Ilya Somin at Volokh Conspiracy, here.

Glenn Chappell: The Historical Case for Constitutional 'Concepts'
Michael Ramsey

Glenn Chappell (Law Clerk, United States Court of Appeals for the Eleventh Circuit; Duke JD '17) has posted The Historical Case for Constitutional 'Concepts' on SSRN.  Here is the abstract: 

The concepts/conceptions dichotomy is prominent in both communication theory and the field of constitutional interpretation. It is most prominently illustrated by the provisions in the Constitution that contain broad, open-ended moral language. Those who hold the “conceptions” view believe that the legal content of those provisions includes both abstract moral concepts and its communicators’ subjective beliefs about, or conceptions of, how those concepts should apply. Under this view, the judge’s role is mostly empirical: he is tasked with examining historical evidence to ascertain those conceptions, which in turn supply applicational criteria by which he can decide specific cases. Those who hold the “concepts” view believe that the Constitution’s language directs the reader to objective moral concepts only; hence, its legal content does not contain any particular person’s or group of persons’ conceptions of those concepts. Thus, under this view, the judge’s task is mostly analytical: he must attempt to analyze the concepts to ascertain their defining criteria and develop applicational criteria from that analysis. 

Through a focused study of the interpretive methods of William Cushing, James Madison, and lawmakers in the Virginia House of Delegates, this Article demonstrates that this debate has existed since at least the founding era, and that the above-named founding-era authorities held a conceptual view of the Constitution. It then reflects upon their interpretations to reveal that they used the Constitution’s text, structure, and moral authority to apply its concepts to the cases before them. Finally, this Article sets forth a preliminary sketch of the conceptual approach’s normative claim. It concludes that the conceptual approach taken by these authorities better respects the constitutional text, the Rule of Law, and the ideal of objectivity in law than those that seek to derive legal content from the conceptions of past actors.

Via Larry Solum at Legal Theory Blog, who has a comment beginning: "Highly recommended.  This article is must reading for anyone interested in the use of the concept-conception distinction in constitutional theory.  My reading of the evidence presented by Chappell is a bit different than his. ..."


Unconstitutional Constitutional Amendments
Mike Rappaport

Throughout the world, constitutional courts have asserted ever increasing powers. One of the most significant areas involves the claimed judicial power to declare otherwise perfectly constitutional amendments to be unconstitutional, because the judges believe they are not in accord with constitutional norms. This recent article describes the issue:

Courts around the world—from Bangladesh to Belize, India to Peru, Colombia to Taiwan— have either asserted or exercised the power to invalidate a constitutional amendment. Courts have drawn from textually-entrenched rules and extra-constitutional norms to declare that procedurally perfect amendments are nonetheless substantively void. Scholars have in recent years taken a keen interest in this phenomenon, producing a burgeoning literature in public law seeking both to explain and justify the judicial doctrine of unconstitutional constitutional amendment. The dominant view in the field is overwhelmingly favorably inclined toward the idea that courts should have the power to invalidate a procedurally-perfect amendment they deem unconstitutional, even in cases where the codified constitution does not entrench a formally unamendable rule. There are relatively few exceptions to the global chorus of voices in support of the extraordinary judicial power to invalidate constitutional amendments. The dearth of contrary views reflects the normalization of the phenomenon Ran Hirschl has identified as the “judicialization of mega-politics,” a now-common phrase referring to the most important matters of political significance that constitute, define and divide polities—and that are now often adjudicated by courts. National courts today decide a host of decidedly political questions: the winner of presidential elections, the legitimacy of political parties, and the self-determination of a people. Against this backdrop, invalidating a constitutional amendment is just par for the course [emphasis added].

Different constitutional systems throughout the world follow different principles – both as to judicial implementation and as to their framing. (For the argument that seemingly nonoriginalist methods in some foreign constitutions might actually be consistent with originalism, see here.) But to understand how outrageous such “unconstitutional” constitutional amendments might be under at least certain systems, let’s focus on the U.S.

The U.S. Constitution does prohibit certain constitutional amendments. For example, if an amendment proposed by Congress does not receive two-thirds of each house of Congress or is not ratified by three-quarters of the states, then it is invalid. Apart from such procedural infirmities, an amendment might be deemed substantively unconstitutional if it deprived a state of its equal voting rights in the Senate without its consent (which is explicitly protected by Article V of the Constitution).

But let’s imagine that an amendment passed that complied with the textual provisions of the Constitution, but a court declared it unconstitutional as inconsistent with the “underlying principles” of the Constitution or its design.  For example, imagine that congressional term limits were enacted, but the Supreme Court said that it was unconstitutional because it was inconsistent with the democratic principles of the Constitution.

Or imagine that the Democrats enacted an amendment to overturn Citizens United, but then the Supreme Court declared it unconstitutional on the ground that it was inconsistent with the First Amendment. This might seem like a strange position for liberal nonoriginalists, but liberal law professors have over the years argued that amendments inconsistent with the First Amendment might be unconstitutional – and thus the only thing strange here is that a traditional liberal position would now be used to combat a liberal initiative.

In a future post, I will discuss the harm that such extra constitutional actions can have on a constitution.

Evan Bernick: Envisioning Administrative Procedure Act Originalism
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has posted Envisioning Administrative Procedure Act Originalism (Administrative Law Review, Vol. 70, No. 4, 2018) on SSRN.  Here is the abstract:

Much of our administrative law is governed by judicially-created “common law” doctrines that seem untethered to either the text or the history of the Administrative Procedure Act of 1946. In recent years, scholars have produced a number of articles questioning the consistency of long-settled administrative common-law doctrines and agency practices with the APA’s original meaning, and Congress is presently considering legislation that is designed to abolish common-law doctrines that require judicial deference to agencies. Because efforts to “turn back the clock” to 1946 could have a wide-ranging impact on administrative law doctrine, the regulatory activity that is governed by that doctrine, and the lives of Americans whose daily affairs are affected by that regulatory activity in countless ways, this turn towards “APA originalism” merits careful attention.

This Article considers what a full-fledged movement to restore a lost administrative Constitution might amount to in theory and practice. It constructs a provisional originalist methodology for interpreting the APA and considers some of the doctrinal implications of putting that methodology into institutional practice, evaluating several important administrative common-law doctrines to determine whether they can be squared with the original APA: “hard-look” arbitrariness review; “Chevron deference” to reasonable agency interpretations of ambiguous statutory language, and “Auer deference” to reasonable agency interpretations of ambiguous regulatory language; and the “logical outgrowth” rule. Finally, it sketches the terms of the normative debate over whether APA originalism ought to be adopted by judges and considers the prospects of that adoption actually taking place.

UPDATE:  Larry Solum at Legal Theory Blog says: "Highly recommended.  Download it while it's hot!"


Timbs and the Privileges or Immunities Clause
Chris Green

Yesterday the Supreme Court granted certiorari in Timbs v. Indiana, a case asking "[w]hether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment." Unlike the Court's last incorporation case, McDonald v. Chicago, the petitioners did not separate out the Fourteenth Amendment's clauses in the question presented, so the Court's failure to rewrite the question presented in terms of only the Due Process Clause did not make waves. But there is reason to think that the case may feature significant discussion of the Privileges or Immunities Clause, rather than merely due process. Timbs and his Land Rover are represented by the Institute for Justice, which advocated a Privileges or Immunities Clause revival in McDonald. Further, the Timbs petition included a brief ode to the "dignity and glory of American citizenship" from Justice Harlan's Plessy dissent. 

Most importantly, there are several compelling reasons--reasons beyond a general opposition to due substance--to think the Due Process Clause does not ban excessive fines (or excessive punishments generally). 

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Chris Green" »