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38 posts from July 2018


Robert Natelson: “Advice” in the Constitution’s Advice and Consent Clause
Michael Ramsey

Recently published in the Federalist Society Review, Robert Natelson: “Advice” in the Constitution’s Advice and Consent Clause: New Evidence from Contemporaneous Sources (19 Fed. Soc. Rev. 96 (2018)).  From the introduction:

Legal commentators have spilled a fair amount of ink over the meaning of “Advice and Consent.” Some, although far from all, argue that the word “Advice” refers to senatorial input before the president presents treaties or nominations to the Senate for deliberation and approval. In a 1979 article on the treaty power, Professor Arthur Bestor contended:

On the one hand, the Senate; on the other, the President—treatymaking was to be a cooperative venture from the
beginning to the end of the entire process. This, the evidence shows, was the true intent of the framers.

Other commentators have agreed that the Senate has an initiating role in the treaty and nomination processes, although most claim for the Senate a role more modest than that Professor Bestor claimed for it.

This essay examines whether the constitutional word “Advice” contemplates senatorial participation before the president presents a treaty or makes a nomination and concludes that it does not.

To be clear (because Professor Natelson quotes a somewhat wishy-washy comment by me), I entirely agree with him.  The Constitution's original meaning contemplated Senate input regarding the President's decisions but it did not require this input in advance of the President advancing a specific proposal (in the form of a nomination or a signed treaty).  My discussion is at pp. 138-141 of The Constitution's Text in Foreign Affairs; it relies on a somewhat different analysis but is complementary to Professor Natelson's; it specifically rejects Professor Bestor's view.

As to treaties, my central textual claim is that the Constitution only requires "advice" (and, in the same phrase, consent) before the President "make[s]" a treaty.  Treaties are not fully "made" (that is, completed and binding under international law) until they are ratified.  So as long as the Senate's advice and consent comes before the President ratifies the treaty, the constitutional mandate is satisfied.  It may be (or may not be) that the Framers expected Presidents to seek advice before negotiating a treaty as a way to gauge the Senate's likelihood of consent, but they did not write a rule that the President had to do so.  Professor Natelson's assessment of the original meaning of "advice" confirms this view.


More on Originalism and Janus v. AFSCME
Michael Ramsey

At Balkinization, Marty Lederman: Exacerbating the real error in Abood: Is there any justification, "originalist" or otherwise, for the Court's holding in Janus that deducting agency fees abridges the freedom of speech?  On the Court's thin originalist justification for its rule: 

Justice Alito [in the majority opinion] then simply asserts, as if night followed day, that "[c]ompelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns [as compelled speech]" (emphasis added, and citing three modern cases, including Abood, that are no more explanatory than Janus).  Why?  Here's the entirety of his reasoning:

As Jefferson famously put it, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2 Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted).

That's it.  A single quotation from a Virginia statute drafted by Thomas Jefferson and enacted by the Virginia legislature five years before the First Amendment was ratified.  Similarly, a few pages later Alito again cites the same sentence from the 1786 Virginia bill as alleged support for the Court's insistence that overruling Abood and holding that the agency fee is unconstitutional is consistent with "the original understanding of the First Amendment":

[P]rominent members of the founding generation condemned laws requiring public employees to affirm or support beliefs with which they disagreed.  As noted, Jefferson denounced compelled support for such beliefs as "sinful and tyrannical," and others expressed similar views.

Who are these "others" in the founding generation who allegedly expressed "similar views"?  Alito cites only two:  Noah Webster and Oliver Ellsworth (both of whom were invoked in the amicus brief of certain California teachers).  But neither of those men suggested that compelled payments are unconstitutional, let alone violations of the Free Speech Clause.  Ellsworth wrote in 1787 that laws requiring people to “make a public declaration of … belief … in order to qualify themselves for public employments” were “useless, tyrannical, and peculiarly unfit for the people of this country”--but of course Illinois does not require its employees to make any declaration of belief, public or otherwise.  Similarly, in 1790 Webster condemned “test laws, oaths of … abjuration, and partial exclusions from civil offices” as “instruments of slavery” and “badge[s] of tyranny.”  He didn't write anything at all about compelled payments.

And so it turns out that the only support for the Court's central assumption--that compelling a person to subsidize the speech of other private speakers raises First Amendment concerns "similar" to compelled speech itself--is a single statement in a Jefferson-penned Virginia statute from 1786.

After further discussion of the Jefferson quote, he issues this challenge:

I'm genuinely curious:  Does anyone--especially, but not limited to, originalists--think that the "sinful and tyrannical" quotation does the trick, or that there's any other basis, neglected by the Court, for concluding that the Free Speech Clause prohibits the state from compelling its nonunion employees to make payments to third parties for expression that the employees disapprove?

I generally agree with Professor Lederman -- I've expressed doubts several times about the originalist foundations of the Janus conclusion (thanks to Professor Lederman for quoting one of these posts).  And I don't think the Jefferson quote is sufficient

Here are my thoughts in limited defense of the Court.

(a) Abood, the case Janus overruled, was (jurisprudentially speaking) an abomination.  It declared a principle (that compelled subsidy of private speech violated the First Amendment) without any substantial basis for doing so, and then it applied a watered-down and nebulous version of that principle with the result that most -- but not all! -- mandatory dues actually were constitutional.  But it required, in pursuit of that very limited rule, that courts to engage in intricate line-by-line review of union expenditures to determine which ones did and did not meet the Abood standard.  For full display of the multidimensional awfulness of this project, see Lehnert v. Ferris Faculty Assn., 500 U. S. 507 (1991), in which members of the Court assessed a detailed list of petty expenditures and disagreed among themselves as to which ones required an Abood exclusion.  (Yes, I still have a personal grudge from working on that case).  I would not be surprised if Lehnert was the case that set Justice Scalia irrevocably on the course to slay Abood with whatever weapon available.  Unsurprisingly, the majority in Janus cited Lehnert as an illustration of Abood's unworkability.

(b) But, as Professor Lederman suggests, why not just overrule Abood and say there is no constitutional objection to compelled dues?  I think that would have been hard for the Court to justify in light of the campaign finance cases.  The Court has said repeatedly that contributing money to campaigns is speech protected by the First Amendment.  But if voluntary contributions are akin to voluntary speech, then compelled contributions are akin to compelled speech.  I'm surprised that the Janus majority did not make more of this analogy.  But I suspect it was on their mind, at least as an unstated assumption.

(c) The problem here, from an originalist perspective, is that the equation of campaign contributions and speech is also (in my view) poorly grounded in originalist evidence.  But it is firmly grounded in precedent.  The Court may well have thought that saying compelled contributions are not speech would destabilize the rule that voluntary contributions are speech.  And it (or at least the Justices in the Janus majority) are very committed to that view.

I think this illustrates the difficulty of doing a pure originalist adjudication in an area with so much precedent.  I'd describe the majority as taking the simplest path to getting rid of what it saw as the embarrassing and unmanageable Abood standard without undermining neighboring areas of doctrine.

That may not be satisfactory from an originalist standpoint -- I think it's not, and I would have preferred if Justice Alito left out the originalist evidence altogether and relied on an analogy to other precedents.  But I think the best way to see Janus is as an effort to (as Justice Scalia sometimes put it) "clean up the law."


Aditya Bamzai: Taft, Frankfurter, and the First Presidential For-Cause Removal
Michael Ramsey

Aditya Bamzai (University of Virginia - School of Law) has posted Taft, Frankfurter, and the First Presidential For-Cause Removal (52 University of Richmond Law Review 691 (2018)) on SSRN.  Here is the abstract: 

In the fall of 1912—while one of the most consequential presidential campaigns in United States history raged around them—William Howard Taft, Felix Frankfurter, and a handful of officials within the federal government initiated a process to remove two members of the Board of General Appraisers for inefficiency, neglect of duty, and malfeasance in office. The process culminated in President Taft’s for-cause dismissal of the two members, Thaddeus Sharretts and Roy Chamberlain, on the very last day that he served as President, after he received a report recommending their firing from a “committee of inquiry” that included Frankfurter.

Taft’s firing of Sharretts and Chamberlain was the first presidential for-cause removal. To this day, it remains the only time in the history of the nation that the President has expressly removed for cause an executive branch “officer of the United States” whose tenure is protected by statute after providing notice to the officer, holding a hearing, and finding that the statutory predicates for removal have been met. Taft’s action involved decisions by two individuals—Taft himself and Frankfurter—who would go on to become Justices of the United States Supreme Court and to author two of the most consequential opinions on the President's authority to remove subordinates, Myers v. United States and Wiener v. United States. It involved the construction and application of statutory language—“inefficiency, neglect of duty, or malfeasance in office”—that Congress still uses to mark some kind of “independence” from presidential control on behalf of an administrative agency. Echoes of the issues that Taft and Frankfurter confronted in 1913 may be heard in Myers and Wiener, in Justice Sutherland’s opinion for the Court in Humphrey’s Executor v. United States, and in recent controversies over the scope of the President’s power to remove subordinate officers within the executive branch. 

Despite all of the foregoing, the episode has escaped scholarly attention and been the subject of no relevant legal discussion. No account of President Taft’s removal of the two Board members appears in the various treatments of the President’s removal power, or in the large literatures devoted to Taft and Frankfurter, two towering figures in American legal history. Indeed, it is widely, but mistakenly, assumed that no President has ever removed an officer for cause and that (in the words of the dissenting opinion in Free Enterprise Fund v. Public Co. Accounting Oversight Board) “it appears that no President has ever actually sought to exercise [the removal] power by testing the scope of a ‘for cause’ provision.” As a corrective, this article tells the story of Taft’s for-cause removal of the two general appraisers on his last day in office, following a process started in the midst of his 1912 reelection battle with future President Woodrow Wilson and former President Theodore Roosevelt. It then explores the episode’s implications for present-day understandings of the development of the American administrative state and the doctrine of the separation of powers.


More on Originalism and Birthright Citizenship
Michael Ramsey

John Eastman (Chapman) -- one of the best scholars taking the limited view of birthright citizenship under the Fourteenth Amendment -- frames the issue well (for his side) in this post:

... The language of the 14th Amendment’s citizenship clause contains two components. First, “all persons born . . . in the United States”; “and” second, “subject to its jurisdiction,” are to be automatically citizens. The phrase, “subject to the jurisdiction,” standing alone, can have two meanings: A full, allegiance-owing jurisdiction, and a partial, territorial jurisdiction. Anyone present in the United States (save for diplomats) is subject to her partial, territorial jurisdiction. Think of a British tourist temporarily visiting the United States on vacation, who is subject to the law that we drive on the right side of the road, not the left.

Even those who are in the country illegally are subject to our laws while here. Subject to the full jurisdiction, on the other hand, involves some kind of allegiance, such as arises when someone has become, or is in the process of becoming, part of the body politic. The issue, then, is which of these two meanings was intended by the drafters and ratifiers of the 14th Amendment.

On that, we do not need to speculate, because the question was posed directly to the leading sponsors of the 14th Amendment....

(Thanks to Mark Pulliam for the pointer.)

I think, though, that Professor Eastman's position leads to the conclusion that children of lawful resident aliens do not have birthright citizenship under the provision's original meaning (though he denies it).  I agree that there are two types of jurisdiction, based respectively on presence in the territory and on citizenship.  But jurisdiction based on citizenship did not apply to lawful resident aliens, even if they had the intent eventually to become citizens.  U.S. jurisdiction over them arose from presence in U.S. territory, as it did for temporary visitors and unlawful entrants.

This is important because it's pretty clear from the debates that the Amendment's framers thought it gave birthright citizenship to the children of lawful resident aliens.  (See Garrett Epps' account of the debates).  And it would be very surprising if it did not, because children of lawful resident aliens had been automatic U.S. citizens under the common law as it stood before the Amendment.  Thus I think it's also pretty clear (notwithstanding some lack of clarity in some of the debates) that the Amendment refers to territorial jurisdiction, not just to citizenship-based jurisdiction.

RELATED:  At Language Log, Neal Goldfarb has an intricate response to Michael Anton's altered quotation of Jacob Howard on the scope of the Amendment: Citizenship and syntax.  From the introduction:

One of the interpretive moves for which Anton [in this essay] has been criticized is his handling of a statement made on the floor of the Senate while the proposed text of the 14th Amendment was being debated. And that dispute turns on the resolution of a syntactic ambiguity.

Here's his description of the issue:

Howard said that the grant of citizenship [in the Fourteenth Amendment] ... did not extent to “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers” (link).

When Anton quoted Howard, however, he altered the text. Specifically, he inserted the word or in brackets:

Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” [bracketing by Anton; boldfacing added]

The post goes on to argue at length (and in my view persuasively) why that's wrong.

But more broadly, this controversy illustrates one of several reasons why I think drafting/ratification debates are not the best originalist evidence.  During the drafting and ratification debates, a lot of people said a lot of things, some of them imprecise, ambiguous, poorly reasoned, even incoherent.  One arguably imprecise or ambiguous statement, even by so prominent a person as Jacob Howard, shouldn't be the centerpiece of the argument.


A Commentary on Holmes’s Lochner Dissent: Part II
Mike Rappaport

In the first part of this post, I started my commentary on Holmes’s Lochner dissent. Here I continue it. As before, Holmes's dissent is in italics, my commentary is in normal print. 

The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. [Holmes here lists various other decisions.] Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

Once again, Holmes is engaged in unsupported assertion. Some constitutions may be intended to embody a particular economic theory – especially if there was a dominant one at the time of the Framing. One must show that the constitution was not intended to do that. Otherwise, Holmes is just telling us what his views about the constitution are, and he has already suggested that the judges views on such matters are not relevant.

[A constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

This is another famous line from Holmes dissent. I agree with Holmes that a good constitution is made for people of fundamentally differing views. In a pluralist country, we should expect that people will differ on many matters and a good constitution will take that into account. But from this point of agreement, I disagree with the implications that Holmes draws. First, that a good constitution is made for people of differing views does not imply that the Supreme Court should adopt a judicial restraint view, as articulated by Holmes below. Many good constitutional provisions allow for pluralism, such as federalism, separation of powers and many individual rights provisions, and enforcing them would promote a good constitutional order for a pluralist country. Judicial restraint may undermine that good constitution. Second, Holmes has not shown that the U.S. Constitution is a constitution of this type. I do agree that the U.S. Constitution is made for people of fundamentally differing views, but not in the way that Holmes thinks.

General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

The key point here is Holmes's claim that “I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.” Once again, this judicial restraint claim is unsupported. There are very good reasons to believe that the people who enacted the 14th Amendment would not have allowed states to pass whatever laws they wanted unless no “rational and fair man necessarily would admit that the statute would infringe fundamental principle as understood by the traditions of our people.” After all, the 14th Amendment was passed in part to attack the black codes. More generally, in some ways the Fourteenth Amendment served to protect existing traditions. But in other ways, it sought to establish new principles in the law. And in yet others it appeared to select among the conflicting traditions of the country prior to the Civil War.

Holmes just ignores all of this, so that he can assert his unsupported claim about the Constitution.

Kevin Toh: Some Reflections on Musical and Legal Interpretation
Michael Ramsey

Kevin Toh (University College London) has posted Authenticity, Ontology, and Natural History: Some Reflections on Musical and Legal Interpretation (forthcoming, Lisa Crawford, Patrick Emerton, & Dale Smith (eds.), Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy (Oxford: Hart Publishing)) on SSRN.  Here is the abstract:

This paper is an attempt to exploit a set of analogies between music and law. Both the originalist movement in law and the so-called period instrument movement in classical music gathered momentum in earnest in the late 1970’s and the early 1980’s. And both were reactions to earlier traditions of interpretation, in law and music respectively, the traditions that the partisans of the new movements deemed insufficiently faithful to the objects of interpretation. “Authenticity” is a term that musicians and critics often use to talk about the ideal of fidelity in musical performance. Importantly, what kinds of performances count as authentic depends on what properties are constitutive of musical works. The legal analogue of this relation, I believe, should help us to think carefully about originalism, which involves a particular way of conceiving the ideal of authenticity or fidelity in legal interpretation.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended")


A Commentary on Holmes’s Lochner Dissent: Part I
Mike Rappaport

Oliver Wendell Holmes’s Lochner dissent is perhaps the most famous dissent in all of constitutional law. Some people regard it as great, either because it criticizes the majority decision in Lochner or because it defends a certain restraint-oriented jurisprudence. Others regard is as awful, sometimes for the same reasons. It is only two paragraphs in substance, and it is chock full of important claims. I thought I would discuss its passages in a couple of blog posts.

Lochner, of course, was the 1905 Supreme Court case that held unconstitutional a state law that set the maximum hours for bakers. The majority saw the law as a restriction on the liberty of workers and employers to set the workers’ hours. The dominant view of the today’s progressives is that it involved a result oriented court’s attempt to block progressive legislation. Some scholarship argues that the law was actually rent seeking legislation that sought protection for union workers at the expense of nonunion workers. Others continue to see it as public-interested legislation.

Holmes’s dissent is short. That provides some of its rhetorical power. But rhetoric differs from substance. Many people take these rhetorical claims and run with them. Thus, in these two posts, much of my criticism of Holmes is based on the unsupported nature of his claims. It is true that one should not expect such support in a two paragraph dissent. But one should not write a two paragraph dissent if one’s claims require significant support. Nor should such a dissent become one of the most prized ones in constitutional law.

(Holmes’s dissent is in italics.  My commentary is in normal print.) 

This case is decided upon an economic theory which a large part of the country does not entertain.

To my mind, this claim is essentially irrelevant from an originalist perspective. What the current country thinks does not decide the original meaning.

If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.

I agree with this claim. Literally, the judges agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is not clear that many of today’s non-originalists agree with Holmes’s claim. In my view, many non-originalists seem to believe that their disagreement with the arguments for a law is very much relevant to the enterprise of judging the law’s constitutionality.

It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

Here, Holmes relies upon precedent. And he is right that the Court had held constitutional many state laws that interfered with liberty. Still, I have two concerns about his argument. First, while I believe that precedent has a role to play in constitutional law, that does not mean it always trumps the original meaning. So precedent is merely part of the story. Second, and more importantly, Holmes has not shown that these precedents are inconsistent with the majority result in Lochner. While the other dissent in Lochner by Justice Harlan attempted to argue that the majority was mistaken under existing doctrine, Holmes did not. It is quite problematic that he here relies upon precedent, without taking the doctrines of those precedents seriously. In fact, there is a reasonable argument that the Lochner majority’s opinion was consistent with precedent.

The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics.

This is one of the most famous lines in the dissent. But it is largely beside the point. The Lochner majority accepted the constitutionality of many laws that would have been condemned by Herbert Spencer’s Social Statics. While one might claim that Holmes is merely exaggerating for effect, that still leaves his argument problematic. The question is what the 14th Amendment does enact.  And Holmes has done absolutely nothing – except make sheer assertions – to establish its meaning.

In my next post, I discuss the second half of Holmes’s dissent.

District Court Finds Hotel Stays Are Emoluments, Principally Based on Originalist Analysis
Michael Ramsey

Yesterday the District Court in the Maryland emoluments litigation (District of Columbia and Maryland v. Trump) denied the President's motion to dismiss, ruling that state and foreign government officials paying for stays at the Trump Hotel are "emoluments" barred by the Constitution.  The analysis is mostly originalist on the key point -- the eighteenth-century definition of emolument -- relying heavily on John Mikhail's article The Definition of “Emolument” in English Language and Legal Dictionaries, 1523–1806, 1–2 (June 30, 2017), https://ssrn.com/abstract=2995693).  Here is the core of the argument:

The clear weight of the evidence shows that an “emolument” was commonly understood by the founding generation to encompass any “profit,” “gain,” or “advantage.” Though the Court agrees that mere counting of dictionaries may not be dispositive, it nonetheless remains highly remarkable that “every English dictionary definition of ‘emolument’ from 1604 to 1806 relies on one or more of the elements of the broad definition DOJ rejects in its brief.” Mikhail, The Definition of “Emolument,” supra, at 1-2.25 Moreover, “92% of these dictionaries define ‘emolument’ exclusively in these terms, with no reference to ‘office’ or ‘employment.’” Id. No less important is the fact that even the few sources that do reference an office or employment as part of their definition of “emolument,” include as well the definitions of “gain, or advantage,” a point the President fails to address in his pleadings. Id. at 8 n.26 (noting that Barclay’s full definition of “emolument” is “profit arising from profit or employ; gain or advantage.” (emphasis added)). Further, the President relies heavily on two pre-Constitutional Convention sources, Barclay (1774) and Trusler (1776), despite the fact that, as Professor Mikhail points out, there is “little to no evidence” that either of these two dictionaries “were owned, possessed, or used by the founders.” Mikhail, The Definition of “Emolument,” supra, at 13 (noting that “neither of these dictionaries is mentioned in the more than 178,000 searchable ocuments in the Founders Online database, which makes publicly available the papers of the six most prominent founders.”). On the other hand, in the four dictionaries which have been deemed by Justice Antonin Scalia and Bryan A. Garner as “‘the most useful and authoritative’ English dictionaries from 1750-1800,” “emolument,” consistent with Plaintiffs’ view, is  variously defined as “profit,” “gain,” or “advantage.” Id. at 18 (citing Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 419 (2012)).

In addition to its broad meaning in a far greater number of founding-era dictionaries, the term “emolument” was also used in a broad sense in eighteenth century legal and economic treatises. As Professor Mikhail points out, in his Commentaries on the Laws of England, Blackstone uses the word “emolument” on at least sixteen occasions, the majority of those not tied to the performance of official duties or public office. See Mikhail, “Emolument” in Blackstone’s Commentaries, supra, (listing examples). Blackstone, for example, refers to the benefits of third-party beneficiaries as “the emolument of third persons,” discusses the “emoluments arising from inheritance,” and references “pecuniary emoluments” in the context of bankruptcy. 2 William Blackstone, Commentaries on the Laws of England *30 (“The thing given in lieu of tithes must be beneficial to the parson, and not for the emolument of third persons only”) (emphasis added); (“The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by way of relief and primer seisin; and, if under age, of the whole of his estate during infancy.”) (emphasis added); *472 (“[W]hereas the law of bankrupts, taking into  consideration the sudden and unavoidable accidents to which men in trade are liable, has given them the liberty of their persons, and some pecuniary emoluments, upon condition they surrender up their whole estate to be divided among their creditors[.]”) (emphasis added).

Similarly, Adam Smith in his The Wealth of Nations—a treatise which the Framers were unquestionably well aware of—used the term “emolument” twice to refer to instances involving private market transactions. See 1 Adam Smith, Inquiry into the Nature and Causes of the Wealth of Nations 92 (9th ed. 1799) (“The monopolists, by keeping the market constantly under-stocked . . . sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.”) (emphasis added); 2 Smith, id., at 234 (“[The bank] makes a profit likewise by selling bank money at five per cent agio, and buying it in at four. These different emoluments amount to a good deal more than what is necessary for paying the salaries of officers, and defraying the expense of management.”) (emphasis added).

The court also rejected Professor Seth Barrett Tillman's argument (as amicus curiae) that the President is not covered by the emoluments clause, relying on (among other authorities) Professor Saikrishna Prakash's article Why the Incompatibility Clause Applies to the Office of the President, 4 Duke J. Const. L. & Pub. Pol’y 143, 148-51 (2009).

In all, I count about 29 pages of originalist analysis.  The principal nonoriginalist evidence the court examines are executive branch opinions and practice, which the court regards as secondary at best.

(Via David Post at Volokh Conspiracy, who finds the opinion "awfully persuasive").


Ninth Circuit Finds Right to Carry Arms in Public, Principally Based on Originalist Analysis
Michael Ramsey

In Young v. Hawaii, decided yesterday, a panel of the Ninth Circuit (O'Scannlain, joined by Ikuta; Clifton dissenting) found a constitutional right to carry firearms in public.  As one would anticipate from Judge O'Scannlain, the analysis is heavily textualist and originalist.  Two highlights:

The court relies in part on the existence of textually separate rights to "keep" and to "bear" arms.

Indeed, the fact that the Second Amendment protects bearing as well as keeping arms implies some level of public carry in case of confrontation. A right to “keep” arms, on its own, necessarily implies a right to carry those arms to some extent. For instance, in order to “keep” arms, one would have to carry them home from the place of purchase and occasionally move them from storage place to storage place. Cf. Ezell v. City of Chicago, 651 F.3d 684, 704 (7th Cir. 2011) (holding that the right to possess firearms “implies a corresponding right to acquire and maintain proficiency in their use”). The addition of a separate right to “bear” arms, beyond keeping them, should therefore protect something more than mere carrying incidental to keeping arms. See Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 271 (1880) (“[T]o bear arms implies something more than mere keeping.”). Understanding “bear” to protect at least some level of carrying in anticipation of conflict outside of the home provides the necessary gap between “keep” and “bear” to avoid rendering the latter guarantee as mere surplusage. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 (1803) (“[I]t cannot be presumed that any clause in the constitution is intended to be without effect . . . .”).

Also, the court uses founding-era writing to support its conclusion:

Several legal treatises that were in wide circulation throughout the founding era support our textual understanding of “bear arms.” In an early American edition of Blackstone’s Commentaries on the Laws of England—indeed, the “most important” edition, as Heller points out, see 554 U.S. at 594—St. George Tucker, a law professor at the College of William & Mary and former influential Antifederalist, insisted that the right to armed self-defense is the “first law of nature” and that “the right of the people to keep and bear arms” is the “true palladium of liberty.” 1 St. George Tucker, Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia app. n.D. at 300 (Phil., William Young Birch & Abraham Small 1803); see also McDonald, 561 U.S. at 769 (treating Tucker’s notes on Blackstone as heavily instructive in interpreting the Second Amendment); Heller, 554 U.S. at 606 (same). And in advocating for the prerogative of the Judiciary to strike down unconstitutional statutes, Tucker wrote: “If, for example, congress were to pass a law prohibiting any person from bearing arms, as a means of preventing insurrections, the judicial courts, . . . would be able to pronounce decidedly upon the constitutionality of these means.” Tucker, supra, at 289; see also Michael P. O’Shea, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of “Bearing Arms” for Self-Defense, 61 Am. U. L. Rev. 585, 637–38 (2012). Indeed, as Tucker explained, “[i]n many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” Tucker, supra, vol. 5, app., n.B, at 19.

Blackstone himself espoused a similarly sacred view on the right to bear arms for Englishmen, which was most notably codified in the 1689 English Declaration of Rights as the right of Protestants to “have Arms for their Defense suitable to their Conditions and as allowed by Law.” Bill of Rights 1689, 1 W. & M., c. 2 (Eng.); see also Alden v. Maine, 527 U.S. 706, 715 (1999) (noting that Blackstone’s works “constituted the preeminent authority on English law for the founding generation”). As Blackstone explained, the 1689 Declaration enshrined “the natural right of resistance and self-preservation” and “the right of having and using arms for self-preservation and defence.” 1 William Blackstone, Commentaries *144.8 It followed from Blackstone’s premise that such a right, the predecessor to our Second Amendment, “was by the time of the founding understood to be an individual right protecting against both public and private violence.” Heller, 554 U.S. at 594 (emphasis added); see also 2 William Blackstone, Commentaries on the Laws of England 441 (Edward Christian ed., 1795) (“[E]veryone is at liberty to keep or carry a gun, if he does not use it for the [unlawful] destruction of game.”).

And: discussion and rejection of the views of originalist pro-gun control scholars Saul Cornell and Patrick Charles.

More from Eugene Volokh here (linking to commentary by Josh Blackman).  A lot more from David Kopel here.

Congratulations to San Diego-based USD law alumnus (and my former student) Alan Beck, counsel for the plaintiff-appellant.


Birthright Citizenship: What the Meaning of “in” is
Andrew Hyman

This is a brief followup to Mike Ramsey’s recent post about birthright citizenship for babies born to people who have immigrated illegally to the United States.  The Citizenship Clause says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Most of the discussion has revolved around the meaning of the phrase “subject to the jurisdiction thereof” (note the definite article “the” which seems in this context to suggest full rather than partial jurisdiction).  I won’t now add to what was previously said about that phrase.  I just want to now put in a good word for also discussing the meaning of “in.”

To be physically “in” the United States is not the same as being lawfully “in” the United States, and the word “in” in the Citizenship Clause may well mean both physically and lawfully “in” the United States.  Many post-1868 cases support that view.  See, e.g., U.S. v. Tu Joy, 198 U.S. 253 (1905): “The petitioner, although physically within our boundaries, is to be regarded as...stopped at the limit of our jurisdiction and kept there while his right to enter was under debate.”  Or see Zartarian v. Billings, 204 U.S. 170 (1907): “Never having legally landed, of course [he] could not have dwelt within the United States."  Or see Kaplan v. Tod, 267 U.S. 228 (1925) (“The appellant could not lawfully have landed in the United States. . . and until she legally landed ‘could not have dwelt within the United States’”).  Or see Leng May Ma v. Barber, 357 U.S. 185 (1958): “We conclude that petitioner's parole did not alter her status as an excluded alien or otherwise bring her ‘within the United States’ in the meaning of § 243 (h)."  This is all very similar to the ancient diplomatic doctrine of quasi extra territorium (Latin: “as if outside the territory”).

This is not to say that the words “subject to the jurisdiction thereof” do not provide a textual way to resolve the matter.  All I’m saying is that the word “in” could perhaps resolve it too.  There are a lot of subtleties here, not least of which is that being within a legal jurisdiction is not always the same as being within a territorial jurisdiction, which in turn is not always the same as being physically within a territory.

Pre-1868 evidence about the word “in” would be useful.  If there is legitimate doubt about the question, then that counsels against any court overturning otherwise-valid statutes that address the matter.  But the matter should only be considered doubtful once interpretive rules have failed to yield clarity.  See John McGinnis: “the practice of liquidation confirms that for the Framers, clarification of unclear text through interpretive rules comes before any obligation of judicial clarity comes into play” (thanks to Will Baude for the pointer).