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43 posts from June 2018


Michael Dorf on Originalism's Bait and Switch
Michael Ramsey

As Justia, Michael Dorf:  Originalism, the Contracts Clause, and the Sveen Case.  It begins: 

On Monday evening, I had the pleasure to debate Georgetown Law Professor Randy Barnett on the question whether “the U.S. Constitution should be interpreted and applied according to the original meaning communicated to the public by the words of the text.” Professor Barnett said yes; I said no. Actually, that’s not quite right. At least as I experienced the debate, Professor Barnett said “yes, but,” whereas I said “so what?”

Allow me to explain with an extraordinarily abbreviated history of the last century of American constitutional jurisprudence, followed by an illustration drawn from a case the Supreme Court decided this week.

Here is the key part of that history:

Bork’s answer [to problems of finding the framers' intent] was of a piece with a general shift that has been ongoing now for three decades and was evident in my debate with Professor Barnett: Self-styled originalists abandoned original intent in favor of what came to be known as “original public meaning.” In this view, even if the vast majority of people who proposed and ratified the Fourteenth Amendment did not intend or expect that it would invalidate de jure racial segregation, that result is required by the meaning of the amendment’s language.

Yet once one allows that a constitutional provision can have profoundly unexpected implications, it is hard to see how originalism differs from its supposed rival, living Constitutionalism. And indeed, not long ago Yale Law Professor Jack Balkin wrote a book provocatively titled Living Originalism, in which he argued—without intended irony—that public-meaning originalism and living Constitutionalism are merely opposite sides of the same coin. If so, however, then originalism would seem to invite the old critique of judicial activism.

To be sure, some originalists have tried to keep the likes of Professor Balkin out of their club, but it is hardly clear that their own versions of originalism are any more determinate than his.

Consider Professor Barnett. He is a libertarian who generally (albeit not always) sees libertarianism in the original meaning of the Constitution. Yet that looks more like projection than history or lexicography. As I pointed out in our debate, and as scholars have explored in depth, the original meaning of freedom of speech (in the First Amendment) and the limitations on the power of eminent domain (in the Fifth Amendment) were much narrower than their contemporary meanings, because libertarianism as we know it today developed after the Founding period, which was better characterized by what we would now call civic republicanism. And if one wants to say that the People who ratified the Constitution and Bill of Rights only gave effect to very broad principles, which can be given libertarian content regardless of the framers’ and ratifiers’ subjective intentions and expectations, then one has joined Balkin in admitting that the originalism emperor has no clothes.

And here is the alleged bait and switch:

As I wrote in a 2012 essay in the Harvard Law Review, Professor Barnett and like-minded scholars “make originalism respectable by answering objections leveled at ‘expectations-based originalism’—but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers’ and ratifiers’ expected applications in considering concrete cases.” Justice Gorsuch’s solo dissent from Monday’s ruling in Sveen v. Melin provides a brand new illustration of this kind of bait and switch.


In his dissent, Justice Gorsuch took issue with the substantial-impairment test [in contracts clause analysis] on the ground that it “seems hard to square with the Constitution’s original public meaning.” Yet despite invoking original public meaning, his historical analysis relied on the old discredited form of intentions-and-expectations originalism. Justice Gorsuch cited a statement made by James Madison at the Constitutional Convention as well as the response Madison gave in public debate to the charge by Antifederalists that the Contracts Clause would forbid valuable legislation; on the contrary, Madison claimed, it would give valuable protection to liberty and property. Notably, Justice Gorsuch did not say anything specifically about what any of the words of the Contracts Clause meant in 1789; his argument was entirely about what the framers and ratifiers intended and expected.

And, after noting that Justice Gorsuch also made a textual argument, a further key point:

Whatever the merits of the textual argument offered by Justice Gorsuch, note, crucially, that nothing about it relies on any distinctively original meaning. It is as true today as it was in 1789 that the phrase “any . . . law impairing the obligation of contracts” by its terms appears to apply to all impairments rather than only to substantial impairments. Justice Gorsuch might have as accurately said that the substantial-impairment test is hard to square with the text of the Contracts Clause as with its original public meaning.

That elision points to one further bit of legerdemain employed by originalists. There has been virtually no relevant “semantic drift”—that is, changes in the meaning of words and phrases—since the Founding. Reading The Federalist Papers or the Constitution is nothing like reading Chaucer’s Canterbury Tales in the original Middle English. Yet self-styled originalists often write as though a vast linguistic gulf separates us from the Founding generation.

If there are virtually no practical differences between the Constitution’s original public meaning and its contemporary meaning, why bother resisting original public meaning? Once again, we should do so to prevent the originalist bait and switch. When originalists with power—which is to say originalist judges and justices—go looking for the original public meaning of the Constitution, they typically retrieve the framers’ and ratifiers’ intentions and expectations.

(Thanks to Mark Pulliam for the pointer).

As usual, Professor Dorf offers important and insightful criticism.  Much could be said in response.  I'll note briefly where I think the most promising responses might go.

On the first point, I would say that the difference between original intent originalism and original meaning originalism is not as great as he supposes (and, in fairness, it may be true that some originalist theorists have oversold the difference).  The central difference is the ultimate objective: to find the subjective intent versus to find the objective meaning.  But changing the ultimate objective from the former to the latter (as Justice Scalia encouraged in his famous speech on the matter) does not mean that intent (or expectations) become irrelevant.  Where the text is ambiguous, it's helpful to know what was generally on the minds of people of the time -- the framers and ratifiers, but also other opinion leaders. For this reason, almost universally in originalist scholarship addressed to a particular clause or issue, there is significant exploration of founding-ear materials.  (This includes Professor Barnett's scholarship).  That's because context is important to meaning.  Very few originalists think that one can find meaning without context, and the inquiry into founding-era commentary is a way (though not the only way) to provide context.  But the intent (or rather the objectives and expectations) one finds in this context is neither decisive nor essential, because the ultimate inquiry is the meaning of the text.

On the second point, I think there is more linguistic drift than Professor Dorf acknowledges, although surely it is not as great as he characterizes originalists as believing.  Typically (though not always) the issue is ambiguity arising from context: a word may have different meanings depending on its context, so the issue is not so much that an entirely new meaning has arising as it is that one must choose between meanings.  For example, in the Sveen case the issue is whether "any" in the contacts clause is to be read literally to mean any impairment or more loosely to mean any substantial impairment.  In thinking about this question, it's relevant (as Justice Gorsuch said) that key framers seemed to think that the protection was a very important one.  The context is that people in the founding era were very worried about state impairments of contracts.  Thus it's plausible to believe that the clause was understood as having its literal meaning.

I agree that there's not much daylight between the original meaning and the modern meaning in this example.  But one can imagine others where the ambiguity is much greater -- for example, the ambiguity in "declare war" or (to use an example recently discussed on this blog) "faithfully executed."  Even though the meanings of the individual words have not changed much (in a Chaucer-to-today sense), the clauses are ambiguous without attention to their context, and part of that context is the way the framers and ratifiers appeared to understand them.


Even More on Presidential Self-Pardons (Update: with Comments by David Weisberg)
Michael Ramsey

At The Faculty Lounge, Eric Muller responds to this Originalism Blog guest post by Michael McConnell.  Professor Muller begins:

Not long ago I put up a post here noting the extreme rarity of the reflexive use of the verb "to grant," both in the 18th century and now.  (This in the context of whether the president can "grant" a pardon to himself.)  I contrasted the verb "to grant" with the verb "to give," which does have a common reflexive usage.  I believe we'd all agree, for example, that President Trump can "give himself" credit.  (In fact, I think I've even seen him do it!)  The verb "to grant," as I understand its meaning, operates differently. 

Michael McConnell makes short work of my argument, observing that a person can "grant" property to himself as a trustee to hold in trust for certain purposes.

I'm not sure that the example does the work for him that he believes it does.  My point is that the verb "to grant" connotes a transfer from an entity to another that has no claim of right to the thing granted.  Note that McConnell's example involves a a grantor's grant of something to himself "as a trustee."  That's significant, isn't it?  There are two different legally recognized entities here that play distinct roles -- a grantor and a trustee.  There remains here the one-entity-to-a-different-entity sense.  The grantor isn't really giving the thing to himself, the grantor.  He's giving something to a different entity, a trustee, who in this case happens also to be the same person who's playing the role of grantor.

But this obscures the larger and more important point that is captured in the Hunter's Lessee quote atop this post.  The inquiry into original meaning is not an inquiry into original rare-and-odd-but-still-conceivable meaning.  It's an inquiry into original natural and obvious meaning.  So even if it's true that one can locate rare scenarios in which a grant can go from the grantor to the grantor, all this means is that if we could sit down with the ordinary person in 1789, we would have to go on at some length about a unique and unusual sense of a word, and the 1789 person would listen, cock his head, look skeptical, and then maybe finally come around to saying, "ohhhhhhh, I see what you mean -- you're using "grant" in that specific and rare sense, aren't you?  OK then."

Surely that can't be how the work of original meaning gets done, can it?

At Take Care Blog, Andrew Kent, Ethan Leib, and Jed Shugerman have posted Self-Pardons, Constitutional History, and Article II (responding to Professor McConnell's earlier Washington Post essay, and also an essay by Richard Epstein).  It begins:

In the aftermath of President Trump tweeting last week that "I have the absolute right to PARDON myself," two of this country's most prominent conservative legal academics published defenses of the president's ability to self-pardon. Michael McConnell of Stanford argued in the Washington Post that the Constitution's drafters specifically contemplated and approved presidential self-pardons, while pointing to impeachment as the sole remedy for abuse of the pardon power. Richard Epstein of NYU wrote in the Wall Street Journal that the president's power to pardon is unlimited, except that misuse of the pardon power may subject him to impeachment in Congress. These views are not correct readings of our Constitution.

On the McConnell essay, the post argues:

McConnell does not closely analyze the text of the Constitution, but rather points to an episode at the 1787 Philadelphia Convention, which he reads as showing that the Framers of the Constitution approved of presidential self-pardons.

Yet the notes from the Philadelphia Convention are well known to be incomplete and imprecise – and are not always a reliable source for divining definitive interpretations of the Constitution. The proceedings were held in secret, and for several decades little information about what had transpired was public. Most importantly, the secret intentions of the drafters are not what made the Constitution our supreme law. As Chief Justice John Marshall famously wrote, when the proposed Constitution was released, it "was a mere proposal, without obligation, or pretensions to it." The people of the states met in conventions to debate whether to adopt the Constitution. "From these conventions," Marshall wrote, "the constitution derives its whole authority." That is why the most plausible and widely-accepted version of originalist constitutional interpretation looks not to the intentions of the drafters at Philadelphia but at the objective meaning that the Constitution's words would have conveyed to the American public at the time of ratification. 

I just want to pause here and note that the post's lead criticism of Professor McConnell is not that he's an originalist , but that he's doing originalism wrong.

The post continues:

But even if the intentions held by delegates at Philadelphia govern, McConnell misreads the extant records and overlooks how later debates during ratification clarified the discussion at Philadelphia. ... [Close analysis of the Convention records follows] ... Thus a fuller look at the historical record suggests that McConnell’s interpretation of the Philadelphia debate is unlikely.

Turning to Professor Epstein's arguments:

Professor Epstein, for his part, does analyze the text of Article II, but he errs in his reading of it. Article II of the Constitution vests "[t]he executive power" in the President, enjoins him or her to "take care that the laws be faithfully executed," and requires that the President take a special oath, swearing that he or she shall "faithfully execute the office of President of the United States." In addition, Article II authorizes the President "to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." Epstein supposes that the pardon power is unconstrained by the President’s Article II obligations of fidelity, and asserts that self-pardoning would be permissible.

We recently helped write a public letter to the President's lawyers, signed by a number of legal academics, which interpreted Article II in the context of the question whether the President has—as some of his defenders like Harvard's Alan Dershowitz have argued—a constitutional immunity to obstruct justice. As we explained there and in a related scholarly paper, when the Founders defined the Presidency as an office bound and restricted by overarching duties of "care" and "faithful[ness]" to the Constitution and laws of the United States, they were invoking well-known limitations on public officers as fiduciaries. In the eighteenth century, as today, English and American law required fiduciaries to act always with due care, solely for the good of their beneficiaries, and to abstain from self-dealing, corruption, and other kinds of self-interested actions. The Founders’ carefully-chosen words, with their well-known meanings, reflect a conception of a chief magistrate who is duty-bound and oath-bound to act with faithfulness to the law and the people, not to his own selfish interests. 

As with prior discussions of this and related topics, I want to emphasize the the extent to which these are all orignialist arguments.  Originalism is completely dominating the debate over self-pardons and, more broadly, the debate over the President's control over prosecutions.  My main interest here (since I think it quite unlikely that the President will pardon himself) is what this says more broadly about the debate over originalism.

DAVID WEISBERG ADDS:  In response to Eric Muller’s latest blog post on the pardon power:  Suppose a contract were drafted today to settle the rights and obligations of many people (collectively designated in the contract as “the Parties”) with regard to several valuable items, including a certain prize (designated as “the Prize.”)  Consider these two possible contractual provisions:

(1) “Party A shall have power to grant the Prize to any of the Parties.”
(2) “Party A shall have power to grant the Prize to any of the Parties, other than himself.”
Does anyone believe that today, in 2018, a court would decide, based on the “natural and obvious meaning” (to use Muller’s terminology) of “to grant,” that provisions (1) and (2) are identical in contractual effect?  I would think not.
 If I’m correct, then when after adoption of the Constitution did the meaning of “to grant” change in such a way that, although it used to be that one could not properly speak of granting something to oneself (except perhaps in very unique, unusual circumstances), today one can grant something to oneself?  When, over the last 230 years, did that change in meaning occur, and why isn’t the change noted in authoritative etymological dictionaries?     


Daniel Martin: The Duty to Appropriate
Michael Ramsey

Recently published, in the California Law Review, Daniel Martin (Berkeley JD '17): The Duty to Appropriate: Why Congress Has a Constitutional Obligation to Fund Criminal Law Enforcement (106 Cal. L. Rev. 511 (2018)).  Here is the abstract:

In the Federalist Papers, James Madison famously called the power of the purse “the most complete and effectual weapon” of the representatives of the people, as part of his defense of the fledgling Constitution. In practical terms, Madison’s claim has proven true time and time again—with Congress using appropriations bills to assert extensive control over the modern administrative state. In legal terms, however, the power of the purse has received remarkably short shrift in both scholarship and case law, especially regarding the relationship between congressional appropriations and the separation of powers doctrine. Specifically, there is no Supreme Court opinion or body of research that systematically defines how appropriations may influence the President’s independent constitutional functions.

In response to this gap, this Note examines the relationship between appropriations and separation of powers, focusing on criminal law enforcement as a model issue. First, this Note argues that the Appropriations Clause confines spending decisions to Congress but does not give Congress plenary control over spending, requiring Congress to appropriate funds to the Executive and Judiciary for their independent constitutional functions. Second, this Note argues that criminal prosecutions should be considered an exclusive executive function, giving Congress a constitutional duty to fund criminal law enforcement. Congress may breach that duty by refusing to provide funding or by placing impermissible conditions on the use of such funds, both of which would force the President to either violate the Appropriations Clause or the Take Care Clause. Because Congress’s action would result in this unconstitutional outcome, this Note ultimately concludes that Congress has a constitutional obligation to provide funding for criminal law enforcement.

An interesting issue, well presented.  But I disagree with the proposition that the President would violate the take care clause if the President is unable to fully execute the law because Congress fails to provide funds for law enforcement.  The clause does not require the President to guarantee full enforcement of the law.  The clause requires the President to faithfully execute the law to the extent of the President's constitutional powers.  With respect to expenditure, the President's constitutional power is (only) to spend the money Congress makes available.  The President does not violate the clause if Congress doesn't make money available.  The alternative view would suggest that, notwithstanding the appropriations clause, the President can (indeed, must?) independently obtain as much money as needed to fully enforce the law.  It has the further implication that the President can issue decrees, use the military, etc., without Congress' approval as needed to fully enforce the law.  That would convert the take care clause from a presidential duty to a vast source of presidential power.


A Response to Professor McConnell on Presidential Self-Pardons
Brian Kalt

[Ed.: Continuing our discussion of presidential self-pardons, we welcome this guest post from Brian Kalt, Professor of Law & Harold Norris Faculty Scholar, Michigan State University College of Law.  He is the author of Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, 106 Yale Law Journal 779 (1996).  Thanks again to Andrew Hyman for facilitating the discussion.]
Put simply, I disagree with Professor McConnell about the proper interpretation of the debate between Edmund Randolph and James Wilson about the pardon power. He is correct that I did not before consider the idea that when Wilson talked about prosecuting the president, he was referring to an impeachment trial and not a criminal trial. Thanks to Professor McConnell, I have now considered that possibility--but I reject it.
The nub of my disagreement with Professor McConnell appears in his statement in his blog post that "To assuage Randolph without advocating an amendment to the pardon power, Wilson would have to explain why Randolph was wrong to assume that the pardon power includes self-pardons. He did not offer any such explanation." Professor McConnell thus reads the debate in the context of his assumption--based on what I am not sure--that Randolph presumed that self-pardons were possible. But he offers no basis to conclude that Randolph (or anyone else present) silently presumed that Presidents had this awesome new power. To me, the more obvious reading is that (1) nobody thought self-pardons were possible; and (2) Wilson was referring to criminal prosecution. That reading explains not only why Wilson's reading assuaged the delegates, but why Randolph had not moved to prohibit self-pardons in the first place.
It also dovetails with Alexander Hamilton's statement in Federalist No. 69 that "The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law."
The following is a deeper dive into the debate, taken mainly from my 1996 Note:
Because the Convention debate as rendered in Madison's notes did not mention self-pardons explicitly, there are three possibilities. The Framers either: (1) did not consider the possibility of self-pardons; (2) silently presumed that self-pardons would be invalid; or (3) silently presumed that self-pardons would be valid.
1. Oversight
When Randolph suggested the possibility of presidential treason, his scenario, a treasonous executive pardoning his treasonous lackeys, was similar to the well-known episode in which King Charles II pardoned Lord Danby to prevent Danby from being impeached--the impeachment trial would have revealed Charles's own perfidious dealings with France. In the wake of the Danby pardon, Parliament restricted pardons from preempting impeachments.
Randolph's analogy to the Danby episode could only go so far, though. The status of the King as above the law--he could do no wrong--meant that there was no such thing in Britain as a self-pardon. When contemplating a Danby-like situation, therefore, Randolph might have overlooked the fact that the President was different. In other words, perhaps the self-pardon was just lost in the translation. This may be why Randolph's solution was to eliminate the treason pardon, not to prohibit self-pardons, which would have been a more obvious and direct solution to the problem of a treasonous President if, as Professor McConnell suggests, Randolph thought self-pardons were possible.
Wilson's response to Randolph took the difference between King and President into account: the President could be impeached. Wilson also said that the President could be prosecuted--I read this as referring to criminal prosecution, while Professor McConnell thinks it refers to the impeachment trial. But either reading is consistent with nobody considering the possibility of a self-pardon. Perhaps Wilson made the implicit assumption that the President could only be weaker than the King; that the powers of the former were less than (or at most equal to) those of the latter. As such, it might not have occurred to Wilson that the President could have a new power.
If this was the case--if the continuity between the English and American pardon powers, coupled with the absence of self-pardons in the former, lulled the Framers into missing the possibility of self-pardons--then no positive answer to the self-pardon question can be found in the Convention debates.
2. Implicitly Invalid
In the discussion of treasonous Presidents trying to skirt the law, perhaps the possibility of a self-pardon occurred to one of the dozens of people in the room. Thus, a second explanation for the Framers' silence was that they presupposed a President could not pardon himself--that the illegality of self-pardons literally went without saying. It would have been a violation of natural law for a man to be his own judge; if anyone believed otherwise it would have been a remarkable assumption that one would think would have occasioned some discussion.
When Wilson answered Randolph's concern of a "guilty" President by pointing out that the President could be prosecuted, he might have been referring to criminal prosecution rather than an impeachment trial. If Wilson and everyone present assumed that a self-pardon would be invalid, this would have provided powerful reassurance. Wilson was reminding everybody that the pardon power did not place the President above the law.
Nobody objected to Wilson's interpretation by arguing, "That cannot be; the President in such a situation could just pardon himself and avoid criminal prosecution." Professor McConnell considers that evidence that Wilson was not referring to criminal prosecution. I consider that evidence that nobody thought self-pardons were possible.
3. Implicitly Valid
If, as I believe, "prosecution" referred to criminal prosecution, it is implausible to think that the delegates accepted, without comment, that self-pardons were possible. Wilson's reassurance was that the President could be prosecuted--if anyone thought that the President could head that off with a self-pardon, surely they would have said so. Otherwise, Wilson would have been asking the Convention to rely on a perfidious President's self-restraint, repentance, and willingness to suffer the penalty for treason even though he had the power to avoid it. If this was what Wilson meant, his argument surely would not have carried the day.
But even under Professor McConnell's reading--that "prosecution" referred only to an impeachment trial--it is not plausible that the Framers presupposed a President could pardon himself. It seems more likely that Randolph did not consider self-pardons than that he had no objection to them. After all, if the possibility of pardoning his confederates was "too great a trust" for Randolph to repose in the President, why would the possibility of him pardoning himself (and for any crime, not just treason) not be much worse?
Furthermore, it hardly seems that Wilson would have been able to assuage the Convention's fears by pointing out that a treasonous President could be impeached. Allowing a traitor-President to be impeached but not criminally prosecuted would not have been very reassuring at all, especially given that in Randolph's scenario all of the President's treasonous subordinates would have been pardoned and immune from criminal prosecution as well. Remember that treason was narrowly defined in the Constitution as "levying war" against the United States or "adhering" to its foes. Randolph's scenario was not one of mere political differences but of outright insurrection.
Ultimately, one can only speculate as to what the Framers thought about the self-pardon. Given the course of their debate, however, it is most reasonable to conclude that they believed the power to be invalid, or at least that they did not think about it.


Further Thoughts on the President's Self-Pardon Power
Michael McConnell

[Ed:  For this post we welcome Michael W. McConnell, the Richard & Frances Mallery Professor of Law, Stanford Law School, Director of the Stanford Constitutional Law Center and Senior Fellow, Hoover Institution.  Thanks to Andrew Hyman for arranging this contribution.]

There have been two serious substantive responses to my Washington Post op-ed on whether the President can pardon himself, which I appreciate.

First, Eric Muller argues in The Faculty Lounge, relying largely on the OED, that because a person cannot “grant” anything to himself, the president’s power to “grant” a pardon cannot extend to himself. The premise is not valid. Two examples. The creator of a trust (called the “grantor”) can grant property to himself as trustee to hold in trust for certain purposes. Moreover, if the terms of a trust empower the trustee to grant certain property to other persons (heirs, perhaps), the trustee can include himself among the grantees. Both of these arrangements are common. Of course, in the latter case there may be self-dealing prohibitions (or not), but they do not arise from the linguistics of the word “grant.”

Second, Brian Kalt argues that the exchange between Randolph and Wilson does not support my conclusion [Ed.: Noted by Andrew Hyman on this blog here]. Here is the exchange, which occurred in the context of a near-final draft of Article II, which read: “he shall have power to grant reprieves and pardons for offences against the U. S. &c.”

Mr Randolph moved to “except cases of treason”. The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.

Col: Mason supported the motion.

Mr Govr Morris had rather there should be no pardon for treason, than let the power devolve on the Legislature.

Mr Wilson. Pardon is necessary for cases of treason, and is best placed in the hands of the Executive. If he be himself a party to the guilt he can be impeached and prosecuted.

II Farrand, at 626 (Sept. 15, 1787). Randolph’s motion was defeated, 8-2-1.

In the op-ed I interpreted this exchange as follows: “The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself. They concluded that the remedy of impeachment by the House and conviction by the Senate was a sufficient check on the possibility of abuse.” Kalt offers an alternative interpretation: that Wilson’s statement means that the President could be prosecuted (criminally) after impeachment. This would refute the possibility of self-pardon.

Kalt does not take account of the fact that the term “prosecution” was frequently used at the time to refer to the “prosecution” of the impeachment in the Senate. ( For example, Edmund Burke was described as “prosecuting” Warren Hastings in the House of Lords after his impeachment by the Commons.) When used as part of the conjunctive phrase “impeachment and prosecution,” like the modern phrase “impeachment and conviction,” the latter term more naturally refers to the kind of prosecution or the kind of conviction that follows upon an impeachment, namely senatorial. Thus, at a minimum, we must conclude that Wilson’s statement is not proof against self-pardon. Wilson may well have been saying that impeachment by the House and prosecution in the Senate provide a sufficient check against the possibility of presidential treason, even in the face of self-pardon.

Indeed, I believe that is the most likely interpretation. There is no question that Randolph’s concern was about the use of the pardon power with respect to criminal prosecutions. (The plain language of the pardon clause already ruled out the use of the pardon power to prevent an impeachment.) Randolph believed that, unless the pardon clause was amended, the president would have the power of self-pardon, which he thought would be especially pernicious in the case of treason.

What about Wilson? If Wilson were referring to subsequent criminal prosecution, as Kalt assumes, his comment would  highlight Randolph’s concern rather than assuage it. To assuage Randolph without advocating an amendment to the pardon power, Wilson would have to explain why Randolph was wrong to assume that the pardon power includes self-pardons. He did not offer any such explanation. But if Wilson’s point was that House impeachment and Senate prosecution would be a sufficient check on presidential misconduct, even without a criminal prosecution, his answer would be a logical and complete response to Randolph.

One further point: Wilson is not saying that the president would be impeached and prosecuted for granting the pardon, to himself or to his “instruments,” but rather that he would be impeached and prosecuted for the underlying offense.


John McGinnis on Originalism and Alternatives
Michael Ramsey

At City Journal, John McGinnis: A Philosophy of Expedience.  From the introduction: 

Judicial appointments have proved the most successful aspect of the Trump presidency. Neil Gorsuch has begun where Antonin Scalia left off—as a committed originalist and eloquent textualist. Twenty-one appellate justices have been confirmed, a record at this point in a modern President’s term.  And, like Gorsuch, these appointees have been schooled in formalist methodologies of judging. Confident of and committed to their judicial philosophy, they will not shift leftward, as have many Republican appointees in the past. These judges are the fruit of institutions like the Federalist Society and of the work of scholars who have carefully formulated the ideas of originalism and textualism. The Left is enraged because the Trump judges will leave their mark for at least a generation. Thus a group, Demand Justice, has been formed to spend millions to assail the Trump appointees and tout progressive judges for the future.

But however much money they spend, judicial progressives face an existential difficulty: the Left has no philosophy of jurisprudence to compete with originalism. Yes, progressives embrace a familiar set of specific legal positions tied to their agenda. They believe that Citizens United—the case that gave corporations the same right to speak at election time as the media—is an abomination. They believe that the Constitution’s enumeration of powers does not prevent the federal government from regulating anything that it wants to regulate. They believe that progressive programs, be they Obamacare or antidiscrimination law, should never yield to claims of religious liberty, and that discrimination is generally fine, so long as it favors minorities—and majorities, too, as long as those are women.

In answering a question about the Supreme Court in a presidential debate with Trump, Hillary Clinton characteristically subordinated law to a grab bag of progressive policy objectives. “I feel that at this point in our country’s history, it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United, we stand up for the rights of people in the workplace.” In contrast, Trump provided a general legal standard based on a principle: “Interpret the Constitution the way the Founders wanted it interpreted.” This is a rough but handy description of originalism.

And from later in the essay:

The one exception to the Left’s constitutional stagnation is the band of liberals, led by Jack Balkin, who embrace originalism, arguing that it can be friendly to progressive goals. This is a welcome development for constitutional theory in the academy, because it puts the debate about the Constitution where it should be—on historical facts about its meaning, rather than on contemporary politics. Nevertheless, the liberal originalism boomlet seems unlikely to have much effect outside the academy. First, the Left has been demonizing originalism for so long that it can hardly now publicly embrace it. Indeed, the whole argument of the Left over the last century is that the law of the Founding was outdated, and today many leftists would add that it is also discredited, being the product of rich white males. Second, with due respect to these theorists, it’s unlikely that a fair reading of an essentially Whig Constitution can be contorted to reflect the progressive agenda today.

And in conclusion:

No victories are permanent in politics or jurisprudence. New left-leaning thinking about constitutionalism will at some point rise to a level worthy of being called a kind of jurisprudence, but for now, originalism has the intellectual power and public resonance. You can’t beat something with nothing.

There's much more of interest in the essay.  I would add an additional supporting point: as discussed a bit on this blog, left-leaning academics and commentators frequently use originalist arguments in support of particular outcomes when originalist arguments seem strongly to support them.  In making these arguments they typically ignore the jurisprudential debate over originalism, and often conveniently overlook their own theoretical opposition to originalism.  (See, for example, this post).

(Via Real Clear Politics).


A Brief Response to Professor McConnell on Self-Pardons
Andrew Hyman

Regarding the WaPo column by Professor McConnell that Mike Ramsey quoted earlier, that column links to the debate transcript from 1787, and I don’t think that transcript really suggests an ability to self-pardon.  Professor McConnell is technically correct that, “The framers of the Constitution thus specifically contemplated and debated the prospect that a president might be guilty of an offense and use the pardon power to clear himself.”  But Professor McConnell crucially omits that they only debated the president using the pardon to clear himself by pardoning his accomplices: “Mr. RANDOLPH moved to ‘except cases of treason.’ The prerogative of pardon in these cases was too great a trust. The President may himself be guilty. The Traytors may be his own instruments.”  According to Professor Brian Kalt, Randolph's scenario was "a treasonous executive pardoning his treasonous lackeys," and Kalt is very likely correct. Shortly after Randolph spoke, James Wilson supported the final language of the Pardon Clause without a treason exception, saying that a sinister president who pardoned his “instruments” could be impeached and also "prosecuted," which of course does not suggest anything about a self-pardon (even in the unlikely event that McConnell is correct that Wilson used the word "prosecuted" to describe prosecution in the Senate rather than by a criminal prosecutor).

Saikrishna Prakash: Congress as Elephant
Michael Ramsey

Recently published, in the Virginia Law Review: Saikrishna Bangalore Prakash (University of Virginia Law School): Congress as Elephant (104 Va. L. Rev. 797 (2018)).  Here is the abstract:

Congress, considered in its entirety, seldom is an object of legal study. Scholars tend to concentrate on discrete features—its Commerce Clause authority, its power to declare war, or the impeachment functions of its chambers. This inclination toward a narrow focus reflects the fact that Congress is so multifaceted that even fathoming its complexity is rather daunting. So intimidating, in fact, that it has caused most scholars to shy away from a comprehensive treatment. This Essay attempts to fill that gap. The Constitution’s text and context suggest that the Founders envisioned Congress playing multiple constitutional functions. After comparing our Congress with its predecessor, the Continental Congress, this Essay describes six roles for Congress, only a few of which are familiar: Chief Lawmaker, Secondary Executive, Chief Facilitator and Overseer of the Magisterial Branches, State Overseer, and Enforcer of Constitutional Rights and Duties. Only when we appreciate Congress in all its complexity can we appreciate why Congress, as an institution, is more than the first branch amongst equals.


Justice Gorsuch Dissents on the Contracts Clause, Cites Mike Rappaport's Student Note
Michael Ramsey

In Sveen v. Melin, decided 8-1 yesterday, Justice Gorsuch filed a solo dissent arguing that the state law at issue was unconstitutional under the original public meaning of the contracts clause.  Here are the key passages:

When it comes to legislation affecting contracts, the Constitution hardens the presumption of prospectivity into a mandate. The Contracts Clause categorically prohibits states from passing “any . . . Law impairing the Obligation of Contracts.” Art. I, §10, cl. 1 (emphasis added). Of course, the framers knew how to impose more nuanced limits on state power. The very section of the Constitution where the Contracts Clause is found permits states to take otherwise unconstitutional action when “absolutely necessary,” if “actually invaded,” or “wit[h] the Consent of Congress.” Cls. 2 and 3. But in the Contracts Clause the framers were absolute. They took the view that treating existing contracts as “inviolable” would benefit society by ensuring that all persons could count on the ability to enforce promises lawfully made to them— even if they or their agreements later prove unpopular with some passing majority. Sturges v. Crowninshield, 4 Wheat. 122, 206 (1819).

The categorical nature of the Contracts Clause was not lost on anyone, either. When some delegates at the Constitutional Convention sought softer language, James Madison acknowledged the “‘inconvenience’” a categorical rule could sometimes entail “‘but thought on the whole it would be overbalanced by the utility of it.’” Kmiec & McGinnis, The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. L. Q. 525, 529–530 (1987). During the ratification debates, these competing positions were again amply aired. Antifederalists argued that the proposed Clause would prevent states from passing valuable legislation. Id., at 532–533. Federalists like Madison countered that the rule of law permitted “property rights and liberty interests [to] be dissolved only by prospective laws of general applicability.” Id., at 532. And, of course, the people chose to ratify the Constitution— categorical Clause and all.

For much of its history, this Court construed the Contracts Clause in this light. The Court explained that any legislative deviation from a contract’s obligations, “however minute, or apparently immaterial,” violates the Constitution. Green v. Biddle, 8 Wheat. 1, 84 (1823). “All the commentators, and all the adjudicated cases upon Constitutional Law agree[d] in th[is] fundamental propositio[n].” Winter v. Jones, 10 Ga. 190, 195 (1851). But while absolute in its field, the Clause also left significant room for legislatures to address changing social conditions. States could regulate contractual rights prospectively. Ogden v. Saunders, 12 Wheat. 213, 262 (1827). They could retroactively alter contractual remedies, so long as they did so reasonably. Sturges, supra, at 200. And perhaps they could even alter contracts without “impairing” their obligations if they made the parties whole by paying just compensation. See West River Bridge Co. v. Dix, 6 How. 507, 532–533 (1848); El Paso v. Simmons, 379 U. S. 497, 525 (1965) (Black, J., dissenting). But what they could not is destroy substantive contract rights—the “Obligation of Contracts” that the Clause protects.

More recently, though, the Court has charted a different course. Our modern cases permit a state to “substantial[ly] impai[r]” a contractual obligation in pursuit of “a significant and legitimate public purpose” so long as the impairment is “‘reasonable.’” Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U. S. 400, 411–412 (1983). That test seems hard to square with the Constitution’s original public meaning. After all, the Constitution does not speak of “substantial” impairments—it bars “any” impairment.  Under a balancing approach, too, how are the people to know today whether their lawful contracts will be enforced tomorrow, or instead undone by a legislative majority with different sympathies? Should we worry that a balancing test risks investing judges with discretion to choose which contracts to enforce—a discretion that might be exercised with an eye to the identity (and popularity) of the parties or contracts at hand? How are judges supposed to balance the often radically incommensurate goods found in contracts and legislation? And does this test risk reducing the “Contract Clause’s protection” to the “Court’s judgment” about the “‘reasonableness’” of the legislation at hand? Simmons, 379 U. S., at 529 (Black, J., dissenting). Many critics have raised serious objections along these and other lines. See, e.g., ibid.; Kmiec & McGinnis, supra, at 552; Rappaport, Note, A Procedural Approach to the Contract Clause, 93 Yale L. J. 918, 918 (1984); Epstein, Toward a Revitalization of the Contract Clause, 51 U. Chi. L. Rev 703, 705–717 (1984); J. Ely, The Contract Clause: A Constitutional History 7–29 (2016). They deserve a thoughtful reply, if not in this case then in another.

It's a little surprising to me that Justice Thomas (at least) did not support him on this.

Congratulations to co-blogger Mike Rappaport for the cite to his student note (!) and to Professor James Ely for the cite to his impressive book on the history of the contracts clause, parts of which he presented at the San Diego originalism works-in-progress conference a few years ago.

UPDATE:  John McGinnis comments here: Gorsuch Tries (Unsuccessfully) To Restore the Contract Clause.


Zachary Price: Funding Restrictions and Separation of Powers
Michael Ramsey

Recently published, in the Vanderbilt Law Review, Zachary S. Price (Hastings): Funding Restrictions and Separation of Powers (71 Vand. L. Rev. 357 (2018)).  Here is the abstract:

Congress’s “power of the purse”—its authority to deny access to public funds—is one of its most essential constitutional authorities. A crucial check on executive overreaching, it may provide authority to stop presidents in their tracks. Yet Congress and the executive branch have developed widely divergent views on the scope of this authority. During the Obama Administration, sharp conflicts over this issue arose in areas of acute policy conflict, including climate change, prisoner transfers, proposed closure of detention facilities at the Guantanamo Naval Base, and federal marijuana enforcement. Many planned initiatives of the Trump Administration—from immigration enforcement, to renegotiation of trade deals, to military operations against Islamic terrorists or other foreign adversaries—could present analogous questions. Despite the issue’s contemporary salience, however, existing scholarship provides no satisfactory understanding of Congress’s power to control the other two branches through appropriations constraints.

This Article offers a systematic account of funding constraints as a separation-of-powers problem. Employing a methodology focused on text, structure, original intent, and the broad contours of historical practice, the Article argues that properly analyzing the problem requires disaggregating executive powers. Congress may not control some executive authorities, such as the veto, pardon, and appointment powers, through restricted or conditional appropriations. These powers are “resource-independent” because the president may exercise them personally, and because allowing Congress to control or materially influence their exercise would elide separation-of-powers distinctions essential to the constitutional structure. In contrast, certain other executive powers, most importantly war powers and law enforcement, are “resource-dependent”—they exist only insofar as Congress provides resources for their exercise. As to such powers, Congress properly holds near-plenary authority to restrict or condition use of available resources.

Hard cases arise in two areas: selective support of resource-independent powers and funding constraints on conduct of diplomacy. In these areas, an antimanipulation principle, modeled loosely on analogous federalism cases, provides the appropriate framework for balancing congressional and executive authority: conditions should be invalid only in narrow circumstances when the condition would unduly manipulate judgments that are properly the president’s alone.

Under this framework, the separation of powers shields presidents from congressional control with respect to powers that exist principally to provide a check on Congress. At the same time, the framework preserves a vital congressional check on the most normatively important executive powers—namely, those that involve bringing the government’s coercive and destructive capacities to bear through law enforcement and warfare.