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38 posts from July 2018


A Response on Birthright Citizenship
Devin Watkins

[Ed.: For this guest post we welcome Devin Watkins, a frequent writer on constitutional law issues from an originalist perspective].
Concerning the topic of birthright citizenship, I wish to play devil’s advocate for a moment. I support granting birthright citizenship as a policy—which I believe Congress clearly has the power to do—but I have doubts as to it being a constitutional requirement. That doesn’t mean I am convinced that it isn’t required, but I am skeptical.

Michael Anton has spoken of the language of the congressional debates on the Fourteenth Amendment. Reading those quotes, as Mr. Anton has laid out, should at least raise questions. But as Justice Scalia described [Ed.: Quoting Judge Henry Friendly, I believe], “legislative history is like walking into a crowded cocktail party and looking over the heads of the guests to pick out your friends.” Each side can do it, to some extent, and so it can become muddled.

But legislators do not pass laws in isolation, and legislative debates are not always the best source of the original understanding.  Prof. Ramsey has questioned if it applies based on the text and pre-drafting history. In other words, the context in which this amendment was written that could lead one to this understanding of the text without relying upon the legislative debates. So let me do just that, with at least a plausible account of such context (although I agree there are arguments on both sides of this issue).

Let us then return to the life in 1866 when the amendment was proposed. This was after the Civil War and the Radical Republicans were trying to restore the rights of African-Americans which had been oppressed by the south. While the Thirteenth Amendment had prohibited slavery, African-Americans were being oppressed in many of their other rights, which Congress wished to restore.

Key to the Citizenship Clause at issue is that the Supreme Court in Dred Scott had held that citizenship was “confined to the white race.” The radical republicans believed that Dred Scott was wrongly decided and wanted to restore what they saw as the rightful interpretation of the Constitution. To do this, the amendment restored African-American rights to citizenship at birth—along with all other people—to be equal to what had always been the case for white Americans.

But then we must consider what were the traditional rights of white Americans to citizenship at birth that would now be extended to all people. To do this requires going back to English common law, which American courts then adopted, which guided birthright citizenship prior to the Fourteenth Amendment. As the Supreme Court would later note in United States v. Wong Kim Ark, 169 U.S. 649 (1898), the most authoritative English common law case for birthright citizenship, that was adopted by the 1787 Founders, was Calvin’s Case, decided by Sir Edward Coke—probably the most revered of the English jurists by the American founders.

Calvin’s Case lays out the terms by which English subjects would have birthright citizenship. According to Coke, the key question concerning if a person was a citizen at birth was the allegiance of the parents at the time of birth.

This doesn’t mean that the parents must be citizens. Coke describes three relevant types of allegiance. (1) Allegiance “originally is due by nature and birth-right” (birthright citizenship), (2) Allegiance acquired (naturalization) or Denizen (permanent resident), (3) temporary allegiance (visa). As long as the parents, at the time of birth, owed at least temporary allegiance to the government, the child was considered to have allegiance by birth (or what we would call birthright citizenship).

But Coke noted that merely being within the territory wasn’t good enough. He wrote that “neither the climate nor the soil, but [a]legiance and obedience that make the subject born; for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soil, and under his meridian, for that he was not born under the [a]ligeance of a subject, nor under the protection of the King.”

So let us assume for a moment that the Fourteenth Amendment’s Citizenship Clause merely applied this common law definition of natural born citizen to all people rather than just white citizens (as Dred Scott incorrectly interpreted). How would that apply to illegal immigrants?

An argument could be made that it would depend on if they entered the country legally. If they got a visa or otherwise entered legally, at that moment they agreed to follow all the laws of the United States; they agreed to at least temporary allegiance during the time in which they are present in the United States, and the United States choose to allow them to enter agreeing to provide them protection. Even if they later violate the laws, they still agreed to follow them.

If, however, they sneak across the border, by what public act did they agree to follow United States laws or the United States agree to provide them protection? As Coke noted, merely entering the country soil is not enough. It also seems strange to describe the act of violating the United States laws, by entering the country illegally, as even showing the intent by the individual to obey the United State's laws.

Coke in Calvin’s Case often asks if a person who acts to overthrow the government has committed treason to determine if someone owes such a duty of obedience and allegiance to the government. Treason has a unique relationship with citizenship, as the Supreme Court held in Kawakita v. United States (1952): citizens are required to not act against the United States no matter where they are, as they always have a duty of obedience to the United States. Likewise Coke notes that people who enter in amity could be guilty of treason, but a soldier who enters while hostile to the government could not be.

So imagine if a person sneaks across the United States border and attempts to overthrow the United States by committing an act of sabotage. Would that individual be guilty of treason? It seems to me to not depend on if the individual is an agent of a foreign power, but that they never agreed to respect the authority of the United States. Without any even plausible act whereby they agreed to pledge even temporary allegiance to the United States, the prohibition on treason cannot apply to them.

And now we get to the text of the Fourteenth Amendment, which states it only applies to those “subject to the jurisdiction” of the United States. If a person cannot be convicted of treason, they are not truly “subject to the jurisdiction” of the United States.

I hope this illuminates at least a plausible argument to consider on the Fourteenth Amendment’s Citizenship Clause based only on text and pre-adoption history. As I noted at the beginning, I actually support the policy of birthright citizenship for all people born here. But it is far closer question concerning if it is a constitutional requirement.

MICHAEL RAMSEY ADDS:  Here is another originalist defense of the Anton position: Juan Davalos, No, The Fourteenth Amendment Does Not Authorize Birthright Citizenship (at The Federalist, thanks to Mark Pulliam for the pointer).



Birthright Citizenship and the Conservative Living Constitution (Updated)
Michael Ramsey

In last week's Washington Post, former presidential advisor Michael Anton argues that the Fourteenth Amendment's guarantee of U.S. citizenship to persons born in the United States should not extend to children of aliens not lawfully present (and perhaps not to persons only transitorally present in the US): Citizenship shouldn’t be a birthright.

Gerard Magliocca (Balkinization) and Jonathan Adler (Volokh Conspiracy) object on originalist grounds, relying in part on scholarship by now-Judge James Ho (5th Circuit).

I agree with Professors Magliocca and Adler and Judge Ho.  I looked a this issue closely in connection with a possible law review article, which I instead turned into a series of blog posts -- see here (part 1), here (part 2), here (part 3) and here (reprise a few years later).  There are some serious originalist scholars on the other side (discussed in my prior posts) but with all respect to them I don't think it's a close question so long as we are employing an original public meaning analysis.  

The topic highlights a broader point.  In connection with Judge Kavanaugh's nomination to the Supreme Court, some commentators have basically equated textualist originalism with conservative results.  I think that is in part because they have not fully appreciated the power (or threat, depending on how one looks at it) of a conservative living constitution.

Anton's argument is weak on originalist grounds, but as a living constitution argument it's likely to have considerable attraction.  See this post by Mike Rappaport: A Nonoriginalist Challenge to Birthright Citizenship for Illegals: Nonoriginalist Arguments (aside: Professor Rappaport, however, agrees with me and others on the originalist reading).  To the three arguments Professor Rappaport makes, I'd also add one of judicial deference: if it seems a close question on pragmatic/normative grounds how citizenship should be awarded, and if the framers did not have the issue clearly in mind in drafting the constitutional rules, perhaps the issue is best left to Congress and the President as the institutions most able to balance the competing considerations.

With a hypothetical five-Justice conservative living constitution majority on the Court, the prospect for dilution of the birthright citizenship rule would, I think, be substantial.  It's a recurring theme in some conservative circles; and the fact that the U.S. is the substantial minority in the world in recognizing nearly unlimited territorial birthright citizenship provides moral "cover".

But with an originalist (or partly originalist, or originalist-oriented) Court, I think there is little prospect of a change.  The originalist arguments are too strong.  Not all  originalists will be persuaded, but enough will be that it will be hard to prevail.

Perhaps this is a naive view -- proponents of the originalism-equals-conservative results-assessment will say so.  But I think they underestimate the power of a judge's overt commitment to originalism as a methodology.  

It's common to think of the"great divide" (as Justice Scalia put it) in constitutional interpretation as the divide between originalism and living constitutionalism.  As a matter of theory, that's true.  But -- as birthright citizenship illustrates -- as a matter of practical outcomes, originalism is actually a middle ground between liberal living constitutionalism and conservative living constitutionalism.

UPDATE:  Michael Anton has a long response to critics here, with more originalist arguments (via Powerline).  But his arguments are only fragments of the congressional debates and don't effectively grapple with the text or the pre-drafting history.

Garrett Epps (Baltimore) has a good lengthy account of the debates here (from 2011).


There Are Not Supposed to Be Any Unwritten Judge-Made Exceptions to the Speech and Press Clause
Andrew Hyman

The Speech and Press Clause in the First Amendment says, “Congress shall make no law... abridging the freedom of speech, or of the press....”  Ever since it was ratified in 1791, speakers and writers have been asking: what exactly does that clause mean, and what (if any) are the exceptions?  In 2017, Judge Brett Kavanaugh commented: “No exceptions would mean no libel laws and no defamation laws....[T]he exceptions here are ultimately a product of common-law-like judging, with different Justices emphasizing different factors....”   But I don’t think that’s right, even though I support Kavanaugh’s confirmation.

There are no unwritten exceptions to the Speech and Press Clause, but even if there were unwritten exceptions, the correct originalist approach would be to limit them to exceptions that were publicly known and understood when the Amendment was written and ratified.  Among those who have said there are no unwritten exceptions to this clause are James Madison (in 1798), Thomas Jefferson (in 1798), and St. George Tucker (in 1803), who all believed that the First Amendment bars Congress from outlawing libel and slander.  Yes, all of those three legal giants really believed that the states were the only authorities empowered to punish libel and slander, leaving Congress powerless in that area.

Madison, Jefferson, and Tucker were correct that there are no unwritten exceptions to this clause, but mistaken that the written words of the Speech and Press Clause mean Congress must allow everyone to say and publish whatever they want.  Scholars as diverse as journalist Anthony Lewis, Justice John Paul Stevens, and National Review pundit Ed Whelan have recognized that the definite article “the” (in the phrase “the freedom of speech”) indicates a specific known degree of freedom, rather than all possible freedom.  If the specific known degree of freedom excludes slander and libel then there is no plausible reason for any judge to concoct unwritten defamation exceptions to the clause.  Similarly to Lewis, Stevens, and Whelan, the great John Marshall argued (in 1799, before he became a judge) that the word “abridge” in the Speech and Press Clause signifies an anti-diminution rule that protects a specific known degree of freedom from shrinkage.  And, the known freedom of speech and press that existed in England and America in 1789 very very clearly did not allow libel or slander.

Putting aside the issue of defamation, it’s true that other aspects of freedom of expression in 1789 would be considered very stingy nowadays, but it turns out that the First Amendment does not demand that we adhere to them.  Consider the prior restraint doctrine.  In England during the eighteenth century, press freedom was guaranteed before but not after publication, and that prior restraint doctrine has been deemed unconstitutional in the United States as to both speech and press.  This U.S. jurisprudence is correct in my view, and I’ll briefly explain why.

In England as in America, prior restraints on spoken words were impractical prior to 1789 even if the governments had wanted to impose them, in contrast to prior restraints on printed publications.  Therefore, as Ashutosh Bhagwat has emphasized, it is unlikely that the First Amendment’s protection of speech merely guaranteed an absence of prior restraint on speech, because that would be guaranteeing virtually nothing.  Ergo, the First Amendment must instead guarantee some freedom from punishment after (not merely before) speaking.  This is fairly clear from the constitutional text, and I believe the same is true for press freedom (which the First Amendment seems to put on the same footing as freedom of speech).  After all, by 1789, the British conception of press freedom was losing its grip in America.  Blackstone had written that the liberty of the press in England does not prevent any punishment after publication, but John Adams stated in 1789 that truth is indeed a defense in a prosecution for seditious libel under the Massachusetts Constitution.  When Adams later became president and signed the Sedition Act, that act likewise included truth as a defense to a charge of seditious libel.  Adams had as narrow an understanding of the First Amendment as any American leader in those days, so it’s very significant that his understanding of free expression was broader than Blackstone’s.  That is, there was an American consensus in 1789 that the British prior restraint doctrine was too stingy.

Even if it were necessary for U.S. courts to make some exception to the words of the Speech and Press Clause (which actually is not necessary), the originalist approach would be to limit those exceptions to the ones that were publicly understood by the people who gave us that clause. Alternatively, SCOTUS conferences can be little constitutional conventions.

MICHAEL RAMSEY ADDS:  Justice Scalia made a similar argument, in a speech reprinted in Scalia Speaks (Christopher Scalia & Edward Whelan, eds. 2017), pp. 201-212, esp. pp. 203-04, explaining why he disagreed with Justice Black's supposedly absolutist reading of the Amendment.

As to Judge Kavanaugh, I think his comments at the Notre Dame conference may have been descriptive rather than normative.  As a descriptive matter, the exceptions often have been crafted in a common law manner.  But he may agree with Justice Scalia as to how the Amendment should be approached.

John Mikhail: A Tale of Two Sweeping Clauses
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted The Declaration of Independence and the Constitution: A Tale of Two Sweeping Clauses (Harvard Journal of Law & Public Policy, forthcoming) on SSRN.  Here is the abstract:

Whenever the relationship between the Declaration of Independence and the Constitution gets discussed, most of the attention naturally gravitates toward the principle of equality and natural rights background of the Declaration, which have played such important roles in American history. The question then becomes whether, and to what extent, the Constitution embodies these background principles. This Essay focuses attention on a less familiar connection between these two documents, which bears on the issue of government powers rather than of individual rights. The Essay argues that James Wilson and other influential founders considered the Declaration to be, in effect, the “first constitution” of the United States, which vested the United States with implied national powers and later inspired a key provision of the Necessary and Proper Clause. I presented these invited remarks on "The Relationship Between the Declaration of Independence and the Constitution" at the 37th Federalist Society National Student Symposium at Georgetown University Law Center on March 10, 2018. A video recording of this talk, along with a panel discussion featuring Judge Thomas Hardiman and Professors Randy Barnett, Lee Strang, and Michael Zuckert, can be found on the symposium website.

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

Professor Mikhail's longer article about the "sweeping clause" in the Constitution is The Necessary and Proper Clauses, 102 Geo. L.J. 1045 (2014) (SSRN version here).

I assume the "implied national powers" would have included power over immigration, so if one accepts his view, it provides an answer to this question.


Robert Natelson on Latin in Constitutional Interpretation
Michael Ramsey

Recently published, in the Federalist Society Review (vol. 19, 2018), Robert Natelson: Why Constitutional Lawyers Need to Know Latin.  From the introduction:

The reason the Constitution’s language was so readily understandable to the founding generation but is obscure to the modern American public is that we lack much of the knowledge they possessed. Involved members of the founding generation knew, or could readily learn about, then-prevailing political practices. They were broadly aware of recent developments in America and Europe, and of the historical background of those events. They were one of the most legally sophisticated generations ever, as Edmund Burke observed in a famous parliamentary speech. Moreover, every boy (and some girls) with educational aspirations studied the Greco-Roman classics from an early age. They were imbued with classical literature, poetry, history, philosophy, fable, and myth. Central to the curriculum was the Latin language, and Latin competency also opened the doors to the scholarship of the Medieval and early-modern worlds. During the founding era, Latin was, in a very real sense, America’s second language. Despite its importance for understanding our nation’s founding and Constitution, none of this knowledge—of eighteenth century practices and law or of Latin and classical studies—is prevalent among the voting public now. It is also rare among the lawyers, law professors, and judges who interpret the Constitution for the rest of us.

Later essays in this series will discuss eighteenth century law and political practice as tools of constitutional interpretation. This essay focuses on why the Latin language and, to some extent, its associated classical studies are indispensable tools for understanding the Constitution. I do not argue that everyone should study Latin, but I do contend that one should acquire a reasonable competency in the language before purporting to offer learned commentary on the Constitution. Note that this essay focuses on the value of the language to constitutional interpretation; it does not enter the long-standing debate over the extent of Latin’s pedagogical benefits.


Eric Posner Asks: Is Judge Kavanaugh an Originalist?
Michael Ramsey

At his eponymous blog, Eric Posner: Is Brett Kavanaugh an Originalist?  From the introduction:

If there is one thing that Kavanaugh’s critics and most ardent supports agree on, it is that he is an “originalist,” someone who interprets the Constitution according to the public understanding of it at the time of ratification (and in the case of amendments, adoption).

But there is, in fact, no evidence—at least, none I can find—that Kavanaugh considers himself an originalist. At the White House, he says only “a judge must interpret the Constitution as written, informed by history and tradition and precedent”—a standard line that could be given by anyone at all. In a video, he is asked point blank about his originalism, and he simply fails to answer. Instead, he talks about interpretation of statutes (which is not what he was asked), and only at the very end says this about the Constitution: “you start with the text but there are whole bodies of precedent on all of these areas or most of all of these areas of constitutional interpretation.” Not much of answer, and certainly not a ringing endorsement of originalism.

In fact, in his writings, Kavanaugh hardly mentions originalism at all. A textualist, yes. An enthusiastic fan of Justice Scalia, yes. But also a fan of William Rehnquist, no one’s idea of an originalist.

(For people who don’t follow legal debates, a “textualist” is someone who, when interpreting statutes [Ed.:  and the Constitution], places primary weight on the normal meanings of the words [Ed.: typically, at the time they were enacted], rather than on legislative history, the purpose of the statute, public policy, etc. A textualist is not necessarily an originalist, indeed, the two ideas are in tension, as the originalist tends to fall back on constitutional purposes as reflected in the contemporary [Ed.:  I think he means "contemporaneous" here] public debate because the constitutional text is so often vague.)

I agree that Judge Kavanaugh is strongly textualist.  See this post, for example.  Given his professed admiration for Justice Scalia, I also think that means he's an original meaning textualist.  Most, though not all, textualists look for the meaning of the text at the time it was enacted, as Scalia emphasized in Reading Law (p. 78), and I'd be very surprised if Judge Kavanaugh did not agree with that proposition.  And given that, I assume he would use standard originalist materials to try to determine original meaning.  I agree with Professor Posner that it's more of a question how far he would go into historical materials to resolve ambiguities on the basis of the framers' purposes or expectations, as opposed to their use of language.  (This is also something Justice Scalia struggled with, as I've discussed).  But I would still call him an originalist if he is looking for the text's original meaning, even if he's skeptical (as Scalia was) of arguments from framers' intent.


16th Amendment Originalism? (Updated)
Michael Ramsey

At Above the Law, Elie Mystal: States Are Suing For Their SALT Deductions Back Under The 16th Amendment.  

The Republican tax bill famously capped the deductions for state and local taxes (SALT) at $10,000 for the purposes of federally taxed income.  ...

The blue states are fighting back, such as they can. A lawsuit was filed by New York Governor (for now) Andrew Cuomo against the federal government, joined by Connecticut, Maryland, and New Jersey. They argue ... [among other things]  that federal government is violating the original meaning of the Sixteenth Amendment… and I am all here for that. Blue states are making an originalist argument about the 16th Amendment and that is goddamn fascinating!

From the complaint:

36. Recognizing this structural limitation on its power to tax, the federal government has always respected the sovereign tax authority of the States by providing a deduction for all or a substantial portion of state and local taxes as part of the federal income tax. Indeed, since the federal government first exercised its income tax power in 1861, Congress has included such a deduction in every federal income tax law. Relying on this constitutional guarantee and uninterrupted practice, the States have structured their own state tax regimes around the federal SALT deduction.

37. The ratification history of the Sixteenth Amendment provides further confirmation that a deduction for all or a significant portion of state and local taxes is constitutionally required. When the States ratified the Sixteenth Amendment, they confirmed the historic limitations on the federal government’s income tax power. At the time of the amendment’s ratification, it was widely understood that, to the extent the federal government taxed income, it would provide a deduction for all or a significant portion of state and local taxes. The States—including the Plaintiff States— relied upon this understanding in making the decision to ratify the Sixteenth Amendment.

The post continues: 

This is the kind of issue that should illuminate the differences between so-called “originalists” versus “textualists.” Clearly, there’s nothing in the text of the 16th Amendment that requires the federal government to respect the SALT deduction. But if you look at the original understanding of the Amendment…

60. These public declarations about the meaning of the Sixteenth Amendment also provide insight into how Congress’s income tax power under the Sixteenth Amendment should be construed. See, e.g., New York v. United States, 505 U.S. 144, 163-66 (1992).

61. The drafters and defenders of the Sixteenth Amendment intended for the federal government’s income tax powers to be constrained by the need to accommodate the States’ sovereign tax authority.

62. When Congress first exercised its income tax power after the amendment’s ratification in 1913, Congress respected the federalism constraints promised by the amendment’s champions. Similar to prior federal income tax statutes, the first post-amendment federal income tax law—the Revenue Act of 1913—included a deduction for “all national, State, county, school, and municipal taxes paid within the year.”40

63. Under Supreme Court precedent, “[e]arly congressional enactments” of this nature “provide contemporaneous and weighty evidence of the Constitution’s meaning.” Printz, 521 U.S. at 905 (alteration and quotation marks omitted). As relevant here, the 1913 Revenue Act’s SALT deduction establishes that Congress understood that its newly minted power to impose a federal tax on incomes was subject to the same federalism limitations that had applied to every federal tax statute since the Founding.

This seems like a more interesting and substantial issue than I thought at first, and I agree about it illuminating differences between textualists and non-textualist originalists.  But I think that's why the states' argument won't have much traction among originalists.  Most modern originalists are textualists, at least for their starting point (or "textualist originalists").  As the post says, the text of the Sixteenth Amendment has no hint of such a limitation and conveys the taxing power in very broad unqualified terms.  It's possible that there was such a strong background assumption against double taxation that no one thought it needed to be written into the amendment, but that seems like it would be hard to establish.  The fact that it was "widely understood" that the federal government "would" provide a deduction does not show a constitutional obligation to do so (at least not to a textualist).  The states should have gotten it in writing -- and also they should not have given up their control over the Senate by ratifying the Seventeenth Amendment if they wanted to maintain the framers' political safeguards of federalism.  [Sadly, a conclusion against personal interest, as a California taxpayer].

UPDATE:  Ilya Somin discusses the suit at Volokh Conspiracy here.  He's even more skeptical than I am ("their legal argument ... borders on the absurd"):

The states point to various statements by framers and ratifiers of the Sixteenth Amendment indicating that the Amendment was not intended to impinge on the rights and powers of state governments. But none of these statements indicate that the federal government was required to create an exemption for state and local tax payments. The absence of such an exemption in no way diminishes states' powers to raise their income taxes as high as they want, although it might, of course, increase political resistance to high state tax rates.

Originalism (in some versions) does accept arguments based on structure and background understandings.  (I believe Professor Somin is a defender of Justice Scalia's opinion in Pintz v. United States, which relies on such arguments).  So I would not be as dismissive.  But in the end I think he's right.


Mark Kleiman on Originalism and Immigration [Updated]
Michael Ramsey

At Samefacts, Mark Kleiman (NYU Public Policy): Does the Constitution authorize immigration restriction?  From the introduction:

If, as the originalists keep reminding us, the Constitution gives the federal government only strictly limited, “enumerated” powers, what provision could be interpreted to authorize immigration restrictions, let alone the creation of a massive national police force entitled to stop people at random within 100 miles of any coast or land border and make them prove their right to be in the country?
As you can see from Art. I, Sec. 8 above, restricting immigration is clearly not one of the “enumerated powers” of the Congress, unlike – for example – passing anti-piracy laws and granting letters of marque.  More to the point, naturalization laws are among the enumerated powers, making the omission of immigration restriction stand out as a “loud silence.”
A few other provisions seemed promising, but didn’t really pan out. For example, Article 9 forbids the Congress from interfering with “migration or importation” before 1808, but that was clearly about the slave trade, and works with the anti-amendment provisions of Article V to prevent its abolition before that year.  It would be a big stretch to infer from it  a general, unenumerated power of Congress over immigration.
So: a puzzle.
And from the conclusion:
The problem for originalists here is that, in the Eighteenth Century, immigration (by contrast with the slave trade) was regarded as a boon rather than a problem. The Framers didn’t give the Congress or the President the power to restrict it simply because it didn’t occur to them that restricting it might be regarded as desirable, just as they allowed the creation of a navy, in addition to an army, but not an air force, because they couldn’t imagine aerial combat. A reasonable person might say that that was then and this is now, and that the federal government’s enumerated powers ought to be stretched to cover the contemporary situation.  But that’s exactly the view originalists hate when it comes to same-sex marriage.

[Most people seem] to be working backwards: starting with the proposition that surely there must be some power to limit immigration, and searching for something in the text that could be used to allow for that, precisely as they mock liberal justices for having done to discover a general right to reproductive freedom – overruling the police power of the states – that would have surprised the hell out of the authors of the Fifth and Fourteenth Amendments.

What’s absolutely certain is that not a single elected official who preaches originalism and “limited government” and “not legislating from the bench,” and who also supports restrictive immigration policies as a matter of economic policy (or applied racism), will be bothered for a millisecond by the fact that the Constitution as written needs to be bent all out of shape to make it confer that power on the federal government.

Plus a quote from me, but I don't really try to solve the problem.  I think originalists have some responses, but the topic has not been developed as much as it might be.

UPDATE (by Andrew Hyman):   

This brief opinion piece by Rob Natelson seems very compelling to me: The Constitution does indeed permit immigration caps as part of ‘the law of nations’.

Natelson emphasizes the Define and Punish Clause, which is not addressed at all by Mark Kleiman.  Although immigrating into the U.S. was not necessarily an offense against the law of nations circa 1787, intruding into any country against its will was indeed an offense against the law of nations circa 1787, as Natelson shows.


William Baude: Constitutional Liquidation
Michael Ramsey

William Baude (University of Chicago - Law School) has posted Constitutional Liquidation (71 Stanford Law Review (forthcoming 2019)) on SSRN.  Here is the abstract:

James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This paper attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.

Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution, but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction” – a real or imputed popular ratification.

While this paper does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.

(Via Volokh Conspiracy, where Professor Baude has some additional quotes and excerpts).

Mike Rappaport adds:  This paper was given at the 8th Annual Originalist Works in Progress Conference.  The video of the presentation, commentary and discussion is available at the Center's new youtube channel.   Readers are encouraged to subscribe to the channel.  


Christopher Sprigman on Judge Kavanaugh and Originalism
Michael Ramsey

At Just Security, Christopher Sprigman (NYU): What Judge Kavanaugh’s “Originalism” Means for the Country (via How Appealing).  Despite the title, it's really two criticisms of originalism and a prescription.  From the criticisms:

Courts striking down legislation, or thwarting the actions of democratically-elected officials, is something that happens so regularly in America that we take it for granted. But we should remember that what the courts are doing in these cases is extraordinary in a democracy. A judge is displacing the decision of a current majority in favor of some inconsistent rule put in place by people long dead. A judge is, in short, allowing the dead to govern the living.

That isn’t democratic. It’s necrocratic. And this “dead hand” problem is endemic to constitutionalism generally. All constitutions that are backed by judicial review sometimes privilege decisions made in the past, decisions that living voters never approved, over decisions made by democratic majorities today.

The question for how we govern ourselves isn’t whether this happens in a constitutional democracy. It does, and to some extent, it must. The question is how often, and on what basis. Originalist judges have shown little reluctance to override the decisions of current democratic majorities; they do so at least as often as judges who believe in a “living Constitution.” Are they doing so based on a reliable understanding of what the fixed, original meaning of the Constitution? Or are they acting out their political beliefs? Those are the vital questions.

... [after a extended discussion of D.C. v. Heller]

Originalists claim that their interpretive method is politically neutral. However, on the federal bench, originalism is a right-wing sport. That is no accident. Originalism pins us to the distant past. A past that predates both the tremendous growth in U.S. population and in the scope and power of the federal government starting with the New Deal and continuing through the Second World War and the Great Society programs. Originalism valorizes a distant past that can be weaponized to halt and even reverse the progressive transformation of society accomplished during that long era of liberal dominance.

Some right wing judges are hiding behind originalism, using it as a stalking horse for the very thing that originalism promises to prevent — partisan judging. These judges exploit originalism’s usefulness in imposing conservative policy preferences, but have no deep dedication to the method itself. You can see this in the selectivity with which some judges will either use or ignore originalism, depending on which way it points in a particular case. As Eric Segall and others have notedJustice Scalia, in particular, was known for this sort of “opportunistic originalism.” For these judges, they have the choice of either picking up originalism when it suits their favored outcome and discarding it in other important cases, or they may very well stick with originalism across cases as they know the framework will in general and on average provide the policy results they have come to believe are just.

But other originalist judges, the ones operating in good faith, are perhaps no less prone to imposing their partisan preferences in the name of the Constitution. These judges presumably tend to suffer, as all of us do, from a version of the confirmation bias that afflicts decision-making. Without systematic mechanisms in place to overcome such bias, they will often see certainty in uncertain arguments for original meaning when those arguments reinforce policy outcomes they like. An originalist judge who unconsciously aligns what the Constitution means with what he wants it to mean is behaving in a way that is altogether human. But it’s no way to run a constitutional democracy.

That originalism is a cover for conservative ideological judging is a common objection but (as I'll try to address in a separate post) not a very compelling one.  The dead hand objection, in contrast, seems to me to be among the more forceful.   (But the two objections are actually a bit in conflict: if originalism is a cover for conservative ideological judging it's not subject to the dead hand objection, and vice-versa).

The post then continues, in a possibly surprising turn: 

So what to do about Brett Kavanaugh, the conservative originalist? In the end, and barring some change in the current political situation, Kavanaugh probably gets confirmed. But this is where I hope that Americans are ready for some new thinking. The problem isn’t just the man, or his politics, or his interpretive ideology. The problem is, more deeply and more fundamentally, that our system has slid too far away from democracy, and too far down a road that leads to the rule of judges. The answer, I’d submit, is not to demand the appointment of fewer originalists, and more living constitutionalists, to the federal bench. Viewed from a certain altitude, originalism and living constitutionalism aren’t all that different. They are both ways of interpreting the Constitution that tend to expand judicial power at the expense of democracy.

The answer is to shrink the power of the federal courts over our lives, including the power of the Supreme Court. But how to do that given the systems we have inherited and the norms we have come to accept?

(There follow several suggestions of varying plausibility).

I don't know Professor Sprigman, so I assume he's a genuine and longstanding advocate of judicial restraint (meaning great reluctance for judges to intervene against the political branches).  Of course, judicial restraint is a very substantial and legitimate position in constitutional interpretation.  And Professor Sprigman is right to understand it as a rival to originalism, not as an ally.  As he says, a consequence of originalism is that acts of the political branches will be overridden, not infrequently, by judges' assessment of the Constitution's historical meaning.  And that is indeed anti-democratic to an extent.

But judicial restraint also carries devastating implications for the liberal constitutional project.  The anti-democratic argument applies in equal force to the iconic cases reaching liberal results.  I'll further assume that Professor Sprigman thinks judges should not be involved in, to pick a few examples, abortion rights, same sex marriage, the death penalty, habeas corpus rights for terrorist suspects, the exclusionary rule, Miranda warnings, and most if not all of the constitutional objections to President Trump's activities.    But I expect that his idea of "what to do about Brett Kavanaugh, the conservative originalist" --namely, push judicial restraint -- will have broader resonance among those concerned about the direction of the Court.   As judicial restraint becomes more of a talking point on the left (as I expect it will), it's important to press to see if its new advocates accept its full implications.  If not, it would seem to be "judicial restraint for thee [or rather, for Judge Kavanaugh] but not for me."