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41 posts from October 2018


More on Birthright Citizenship
Michael Ramsey

Predictably there has been an outpouring of commentary on birthright citizenship in light of the President's comments.  Without attempting anything comprehensive, here are a few highlights:

At Vokokh Conspiracy, Ilya Somin and Eugene Volokh (both of whom have some policy reservations about birthright citizenship for U.S. born children of illegal immigrants) nonetheless think it is constitutionally required.  Professor Somin adds (and I agree):

Even if the Fourteenth Amendment does not guarantee birthright citizenship to children of undocumented immigrants or temporary visa holders, it does not follow that the president can deny it to them by executive order. The Naturalization Clause of Article I of the Constitution gives Congress, not the president, the power to "establish an uniform Rule of Naturalization." And, when it comes to children of aliens born on US soil, Congress has in fact exercised that power. A federal statute, 8 U.S.C. Section 1401, extends birthright citizenship to any "person born in the United States, and subject to the jurisdiction thereof." For reasons well explained by Michael Dorf, this law must be interpreted as granting birthright citizenship to children of undocumented immigrants, even if the Supreme Court were to rule that the similar language of the Fourteenth Amendment does not.

Professor Volokh writes:

I personally think that categorical birthright citizenship is a bad idea; it would be better if children born in the U.S. to illegal aliens, or to legal alien tourists, didn't get U.S. citizenship as a result (though perhaps the answer might be different as to children of legal permanent residents, or to children who have lived here for long enough, or some such). U.S. citizenship is one of the most valuable things in the world, and we generally don't let people get hugely valuable things because of the criminal acts (even if only mildly criminal) of their parents, or for that matter because their parents were lawfully visiting the U.S. at a particular time. Whatever the basis for deciding who our future fellow citizens -- and thus the future rulers of the nation -- should be, the fact that the child was born on our territory shouldn't be enough.

This having been said, the Constitution seems pretty clear to me, even if I disagree with the rule it sets forth: Being the child of illegal aliens (as opposed to, say, the child of foreign diplomats) doesn't stop you from being "subject to the jurisdiction" of the U.S. Jurisdiction is an entity's power to impose its legal will on someone, and the U.S. unquestionably has the power to do that for children of illegal aliens as much as for children of legal aliens or of citizens. People who commit a crime, including the crime of illegal entry, don't somehow elude the jurisdiction of the U.S. as a result. Likewise, the children of people who commit this crime are subject to our jurisdiction as well.

In the New York Times, the great Reconstruction historian Eric Foner: Donald Trump;s Unconstitutional Dreams: The President Has Birthright Citizenship All Wrong.  (Thanks to Michael Perry for the pointer).

And at NRO, Robert Verbruggen: Birthright Citizenship: A Nutty Policy We’re Probably Stuck With.  It concludes:

The argument against birthright citizenship certainly has a long history, as can be seen in these legal opinions released within decades of the 14th Amendment’s enactment. But as I said at the outset, I don’t quite find it convincing, given the more direct evidence from the text and more immediate historical context — though it must be conceded that we have no idea what the framers of the 14th Amendment would have thought about illegal immigrants in particular, because illegal immigrants simply didn’t exist back then.

To defend an executive order before the Supreme Court, however, the Trump administration would need to convince all five originalist judges that “subject to the jurisdiction” must be read in a way that’s somewhat quirky to modern ears, relies on a highly specific reading of the historical evidence, and overturns more than a century’s worth of standard practice. That’s a longshot.

Does Illegal Immigration Necessarily Consist of “Aliens in Amity” With the U.S.?
Andrew Hyman

Birthright citizenship is much in the news right now.  In the leading case of Wong Kim Ark (1898), the U.S. Supreme Court discussed the old law of England (my emphasis in bold):

The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim  protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.

Therefore, one key question now is whether it’s reasonable to say that people who have immigrated unlawfully (by skipping over long lines of applicants, evading points of entry, and refusing to prove any right to asylum) are necessarily “aliens in amity,” regardless of what the President might say, and regardless of what Congress might say.  In Miller v. United States (1870), for example, the U.S. Supreme Court said (citing an old English case from 1696) that “subjects of a state in amity with the United States” are nevertheless not themselves in amity with the United States if they engage in “hostile acts” against the U.S. during a war.  Surely, if a million unarmed citizens of the United States decide to elbow their way into another country, without any involvement of the U.S. government, that country could properly consider them to be invaders at war, and treat them accordingly.  

So, I respectfully dissent from Mike Ramsey’s <view that “illegal immigrants do not fit into any of the exceptions to territorial jurisdiction.”  Just because illegal immigration was not an offense against any federal laws in 1868 doesn’t mean we must refrain from drawing reasonable inferences about how it would have (or could have) been addressed at that time.

Responses to Andrew Hyman and Michael Ramsey
Eric Segall

Thanks to Andrew Hyman for engaging with my post. We agree on most matters but do have one bone of contention. He writes that "non-originalists have a variety of approaches to constitutional law; they are no more monolithic than originalists, and often they have no compunction about giving the constitutional text a new meaning that it never previously had, essentially rewriting the text.  There’s nothing shameful or mythical about acknowledging this."

The major point of my post was that today's originalists who claim not to be bound by original expected applications are no better (or worse) than so-called non-originalists "at giving the constitutional text a new meaning that it never previously had, essentially rewriting the text." Both sides claim that they are giving the text itself an updating meaning not rewriting it. The reality, however, is that very few judges or scholars today are primarily motivated by text or history in hard constitutional cases and have little compunction in updating old principles to new facts. The difference is many originalists are claiming to be applying the original public meaning as a major factor in constitutional interpretation (when they are really just updating old principles) while non-originalists admit up front that updating the text is fully permissible with original meaning being just one factor among many to be considered.

As for Professor Ramsey's question from yesterday , here's my answer:

I’m not an expert on the issue of birthright citizenship but it appears there is strong consensus among scholars that both the text and history of the 14th Amendment are clear on this question. In my fantasy world of super clear error judicial review, this might be a close case but as I said I haven't researched it. Of course, we don’t come close to living in that world so the reality is that all bets are off and we can only predict what the Court will do as a political, not legal, matter. (See Janus).

An Interpretive Conundrum in Jam v . IFC
Michael Ramsey

The Supreme Court hears oral argument today in Jam v. International Finance Corporation (SCOTUSblog coverage here and here).  It's a statutory case with an interesting interpretive twist.

The International Finance Corporation (IFC), an international organization based in Washington D.C., claims it is immune from suit under the International Organizations Immunities Act (IOIA), a federal law enacted in 1945.  IOIA provides that  that international organizations “shall enjoy the same immunity from suit and every form of judicial process as is enjoyed by foreign governments.” 28 U. S. C. 288a(a)(b).  When the statute was enacted, foreign governments enjoyed almost complete immunity from suit, although courts would defer to an executive branch determination that immunity should not be applied.  Today, however, foreign governments have less in the way of immunity thanks to the Foreign Sovereign Immunities Act (FSIA), enacted in 1976.  Among other things, the FSIA provides an exception for immunity for commercial activities (which would likely include most of what the IFC does).

So when the IOIA said that the IFC gets the "same immunity" as foreign governments, did it mean the same immunity that foreign governments had in 1945, or the same immunity as foreign governments may have from time to time?

The issue splits foreign affairs law scholars, in a divide that crosses ideological and methodological lines.  For what it's worth, I joined an amicus brief in support of the IFC (that is, arguing for the 1945 version of immunity), along with some internationalist scholars with whom I rarely agree.  There is an impressive list of scholars on the other side, reflected in this amicus brief, and also this Lawfare post by Ingrid Wuerth (Vanderbilt) (with whom I often do agree).

I found it a close question, but I was mostly persuaded by this argument (developed in the IFC brief, and not really engaged in the opposing professors' amicus):  The IOIA additionally provides that "The President shall be authorized, in the light of the functions performed by any such international organization, by appropriate Executive order to withhold or withdraw from any such organization or its officers or employees any of the privileges, exemptions, and immunities provided for in this subchapter ..."  28 U.S.C 288.  That looks like a delegation to the President to allow a more flexible approach to immunity where appropriate, which is consistent with picking a near-absolute and fixed baseline immunity.  (The plaintiffs' brief and the opposing professors' amicus brief complain that using the 1945 baseline is unduly rigid, but that's simply not true once one considers the role of the President).  Then, when Congress enacted the FSIA, it made no reference to the IOIA or to international organizations, or to the President's role under IOIA.  I think that meant it was leaving their immunity to the President to decide under IOIA, rather than supplanting the President's role.   (This argument is somewhat parallel to the immunity of foreign governments officials, which is also not covered in the FSIA).

Notably, the briefs on both sides concentrate heavily on finding Congress' meaning at the time of enactment (so, it's another case of statutory originalism).

I can't resist this aside, though it's not in the briefs or part of the question presented at the Supreme Court:  The IFC should absolutely lose this case (as to immunity), despite our amicus.  The IFC's Charter (called its Article of Agreement) states: 

Actions may be brought against the [IFC] only in a court of competent jurisdiction in the territories of a member in which the Corporation has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities.

That looks like a waiver of immunity to me, and the IOIA specifically says international organizations may waive their immunity.  If that's right, there's no need for the Court to answer the question presented, because there's no immunity even under a 1945 version of immunity.  But in a preposterous opinion in Mendaro v. World Bank, 717 F.2d 610 (D.C. Cir. 1983), the D.C. Circuit read equivalent language in the World Bank charter to allow only a suit that “would benefit the organization over the long term.”  The D.C. Circuit in Jam dutifully followed Mendaro, although Judge Silberman's opinion for the panel expressed some doubt about it (calling it, with some understatement, "a bit strange"), and the Supreme Court did not take up the issue.


Birthright Citizenship and Constitutional Interpretation
Michael Ramsey

Various media outlets are reporting that President Trump is considering an executive order modifying rules on birthright citizenship.  They are also typically reporting or heavily implying that this order would violate the Constitution.  I think the issue is more complicated than it's being portrayed.

There are two separate issues, (a) whether the Constitution allows the U.S. to deny birthright citizenship to the U.S.-born children of illegal immigrants, and (b) if so, whether the President can do it on his own, without an act of Congress.  I'll leave the second question to one side, as I think it's mainly a question of administrative law.  I assume the President's order would amount to a reinterpretation of existing statutory citizenship law; it seems clear that the President does not have independent power to vary the citizenship laws, but arguably he has power to change the administrative interpretation of them.  (As an aside, though, my guess is that if the issue ends up in court, the most likely outcome would be for the courts to find that the President lacks power to change the rules on his own and thus avoid reaching the constitutional question).

On the constitutional question, as I have written several times in the past (e.g., here, with links to earlier posts), I think the original meaning of the Fourteenth Amendment is clear in granting birthright citizenship to U.S.-born children of illegal immigrants.  Briefly:

The Amendment says that "All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States..."  It was a bedrock principle of nineteenth-century international law that sovereigns had complete jurisdiction (that is, authority to prescribe law) over all persons and things within their sovereign territory.  This principle was subject to several exceptions, notably (1) territorial jurisdiction did not extend to ambassadors and other diplomatic personnel, nor to foreign rulers and their property, all of whom had immunity from the laws of the territorial sovereign; (2) territorial jurisdiction could be limited by treaty, as the U.S. did to some extent in treaties with Indian tribes; and (3) territorial jurisdiction did not exist as a practical matter over hostile armies and in areas under hostile occupation.  These principles are described in Chief Justice Marshall's opinion in The Schooner Exchange (1812) and in widely read international law treatises of the time.

U.S.-born children of illegal immigrants do not fit into any of the exceptions to territorial jurisdiction.  Nor is there any doubt that such children are  governed by U.S. law at the moment of their birth.  Thus they are "subject to the jurisdiction" of the United States at birth.  As a result, the text's original meaning grants them U.S. citizenship at birth.

For originalists, that should be an end of the matter.  (There are some counterarguments [discussed here] principally based on comments made in Congress during the drafting process.  But on the whole the drafting debates support the above reading, as Garrett Epps has shown, and in any event the debates contain a range of views, some poorly expressed or poorly thought out; they should not overcome the text’s clear meaning.)

But that is not the end of the matter.  Modern constitutional interpretation does not fully embrace originalism.  The birthright citizenship issue is much more difficult from an evolving constitution approach (see my post here, and especially this post by Mike Rappaport).  The drafters and ratifiers of the Fourteenth Amendment did not understand the issue of widespread illegal immigration.  The country did not have restrictive immigration laws at the time.  Thus the drafters and ratifiers likely did not see themselves as deciding the issue.  It’s possible that, had the issue been before them, they would have made a different choice.  And in any event, modern circumstances are much different.  Most evolving constitution approaches typically would allow courts to consider the best fit for modern conditions in deciding an issue under these circumstances.  And depending on one’s view of the policy arguments, it’s quite possible to reach the conclusion that the nineteenth century rule, adopted by people long dead to resolve a different challenge (principally the citizenship of former slaves), should not be used to constrain the choices of the elected branches to deal with a modern problem the framers did not anticipate.

I think this is a substantial difficulty for evolving constitutionalists, which is why I expect that most of the arguments against the President’s proposal will be couched in originalist terms (even by commentators who are typically not originalists).

The issue also poses an interesting dilemma for advocates of judicial restraint, including recent guest blogger Eric Segall.  Professor Segall says in his recent post that (a) courts should not intervene against the political branches except where the originalist arguments are overwhelmingly clear, and (b) in litigated cases the originalist arguments are virtually never overwhelmingly clear.  (Specifically, he writes: "Judges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text (almost never happens) or uncontested history behind the text.")  My question to him:  is this a case (assuming it gets to court) where the originalist arguments are sufficiently clear?  And, as a follow up: if the answer to that question is yes, are the changed modern circumstances sufficient to permit a reinterpretation, or at least to make the outcome sufficiently unclear that the courts should decline to intervene?

Professor Segall is Mostly Correct “IMHO”
Andrew Hyman

I agree with Professor Eric Segall’s recent blog post on several points.  For example, he writes that there are different kinds of originalists (i.e. “not all have” the same approach), and says that original meaning “often requires that the application of the text evolves as modern circumstances evolve.”  I agree with all of that.  Segall is also correct that originalists and non-originalists fit on a spectrum where they meet and become virtually indistinguishable.  And, he writes that “[j]udges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text ... or uncontested history behind the text. ”  All pretty much true, but I would like to disagree on a few points.   
Professor Segall writes that, “It is a shameful myth propounded by some originalists that non-originalists manufacture new constitutional principles outside the Constitution’s text.”  On the contrary, some non-originalists do attach a much higher value to current societal needs than to the Constitution’s text, on the ground that the Constitution’s meaning should evolve so as to fit whatever the times now demand; some non-originalists are less freewheeling than that, but still would allow the Constitution to be amended outside of the Article V amendment process during so-called “constitutional moments.”  Whether Professor Segall subscribes to any such views or not, non-originalists have a variety of approaches to constitutional law; they are no more monolithic than originalists, and often they have no compunction about giving the constitutional text a new meaning that it never previously had, essentially rewriting the text.  There’s nothing shameful or mythical about acknowledging this.  
Regarding specific clauses mentioned by Professor Segall, I’ve written a bit about phrases like “equal protection of the laws,” and “due process of law,” and have found that there is no preponderance of evidence, much less clear and convincing evidence, for the extremely broad meanings that the judiciary have attributed to these clauses in the Fourteenth Amendment. But that has not stopped many non-originalists from using those clauses to embody whatever policy preferences they want.    I disagree with Professor Segal that those two clauses are “hopelessly vague,” but appreciate his reluctance to let the judiciary harness that supposed hopeless vagueness.  
The Due Process Clause has ancient roots going all the way back to Magna Carta, and primarily established a separation of powers, i.e. the executive could not inflict deprivations without judicial proceedings authorized by legislatures.  To the extent that the Due Process Clause limits how American legislatures authorize deprivations of liberty, the clause simply establishes a remedy for violating other constitutional trial procedures — and that remedy is liberty.  The Equal Protection Clause was more innovative in 1868, but still was not a blank check for the judiciary to impose equality; if the clause had referred to “the equal protection of its laws” instead of “the equal protection of the laws” then the clause would have only required equal administration  of whatever laws were on the books of each state; the only purpose for using the word “the” instead of “its” was to include federal law, thus allowing SCOTUS to check state legislatures pursuant to congressional declaration.  I would have no problem if those two clauses (DP and EP) would be applied faithfully against legislators in new and unexpected circumstances, if there is clear and convincing evidence that the legislators have violated these clauses.  Professor Segall is absolutely right to require clear and convincing evidence,  or “irreconcilable variance” as Hamilton put it in Federalist 78, and this requirement is deeply rooted in the original meaning of judicial power.


What is Original About Original Meaning?
Eric Segall

[Editor's note:  For this guest post we again welcome Eric Segall, the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law.]

Over the last three weeks, I have given talks at six law schools discussing my recent book Originalism as Faith. In my book, I go all the way back to before the Constitution was ratified to discuss the topic, but in these talks, I began with Judge Robert Bork, Attorney General Ed Meese, and Raoul Berger and explain how they thought the Warren and early Burger Court’s liberal decisions were illegitimate. They complained that the only proper inquiry (leaving aside precedent) for a judge in a constitutional case is to try to ascertain whether the law challenged by the plaintiff violates the original intent of the Constitution applying a heavy burden of proof on the plaintiff. The Original Originalists, as I call them, expected judges to defer substantially to the decisions of other political officials.

But times, politics and judges change. By 1992, the lower courts had been flooded with conservative judges selected by Ronald Reagan and George H.W. Bush, and Justices Anthony Kennedy and Clarence Thomas joined with Rehnquist, O’Connor, and Scalia to form a five-person majority that reached, if not consistently conservative results at least decisions substantially more conservative than those of the Warren and early Burger Courts. In the areas of federalism and criminal procedure, especially, the Rehnquist Court moved the law far to the right. This new conservative Court, and the new conservative lower federal courts, was followed by a different brand of originalism that had little in common with the Original Originalists.

Many, certainly not all, academic originalists searched for a theory to justify the new aggressively conservative judicial review. The so-called New Originalists made several important changes to the doctrine. They decided that the search was for the original public meaning of the text not the original intent of the ratifiers; they distinguished between constitutional interpretation (the search for the non-legal communicative context of the text) and constitutional construction (giving the text legal effect); they dropped the deference aspects of originalism; and most importantly for this post, they decided that originalists were bound by original “fixed principles” but not “original expected applications.” That last move took the “original” out of “originalism” and is the move that has most befuddled the audiences for my book talks.

Here is Mike Ramsey’s explanation for why it is possible that the 14th Amendment’s original meaning prohibits same-sex orientation discrimination:

To begin, I assume that the Fourteenth Amendment’s equal protection clause establishes   an anti-discrimination or equal treatment rule …. the focus, then, is on the original public meaning of “equal” in the equal protection clause.  I will further assume the word had an original public meaning of (at minimum) non-discrimination on the basis of characteristics such as race (but not only race, or the clause would have proscribed only race discrimination).  Thus the question is whether sexual orientation is a characteristic like race.  Clearly people at the time the clause was adopted didn’t think so, because apparently no one thought the clause protected same-sex sexual conduct.  Though this is sometimes called an “original expected application” it is (especially in this context) highly probative of original meaning: the best explanation of the expected application is that whatever “equal protection” meant to people in 1868, it did not mean constitutional protection of same-sex relationships.

That, though, may not be the end of the argument.  It is possible that understandings of the facts underlying sexual orientation might change in a way that would affect sexual orientation’s status under the fixed meaning of “equal.”  While original public meaning methodology must apply the fixed meaning of the constitutional term, changes in knowledge might change the application of that fixed meaning to particular facts. (emphasis added).

Similarly, Professor Ilya Somin, conceding that gender discrimination laws (like statutes prohibiting women from being lawyers) were deemed constitutional by most people when the 14th Amendment was ratified, thinks they could be struck down by originalist judges today because of factual mistakes made by the people at the time. Today, an originalist can vote to strike down such laws because “as nearly all originalists recognize, that methodology is entirely consistent with updating the application of the Constitution’s fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.”

And Ilan Wurman’s recent book on Originalism says the following: “Originalists recognize that original meaning often requires that the application of the text evolves as modern circumstances evolve.”

Constitutional litigation does not implicate clear language such as the President must be 35 or there must be two Senators from every state. Therefore, what originalists call constitutional interpretation is mostly if not entirely irrelevant to how judges decide cases. Most litigation involves phrases like “equal protection,” “due process,” “free exercise,” and “establishment.” Calling the broad principles raised by these provisions “fixed” but then saying their application can change based on new facts, values, and knowledge is exactly how alleged “living constitutionalists” or folks who believe in pluralistic methods of constitutional interpretation would approach constitutional litigation. It is a shameful myth propounded by some originalists that non-originalists manufacture new constitutional principles outside the Constitution’s text. No one I know does that. Instead, non-originalists simply believe that “original meaning often requires that the application of the text evolves as modern circumstances evolve,” just like Wurman says.

Chapter 7 of my book documents the votes by Justices Scalia and Thomas employing exactly the methodology Wurman, Somin, and Ramsey claim is originalist but in effect is simply the same methodology employed by non-originalist judges and scholars. Cases like Printz v. United States, Seminole Tribe v. Florida, Shelby County v. Holder, Lujan v. Defenders of Wildlife and many other cases striking down laws were decided on the basis of non-textual principles derived from imprecise constitutional language and contested history using a method no different than that employed by the Court in Roe v. Wade, Reynolds v. Sims, and Obergefell v. Hodges.

The reality is that allowing judges to update vague and imprecise constitutional principles with new facts and knowledge takes the “original” out of “originalism.” Thus, today’s originalists who have moved far away from Bork and Berger (and not all have) should stop pretending that their method is legitimate while the method employed by “living constitutionalists” is not. That is simply false because both methods are the same.

Finally, my preferred method of constitutional interpretation, as outlined in my 2012 book Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges, is similar to Bork’s and Berger’s. Judges should not strike down laws unless the plaintiff shows through clear and convincing evidence that the law violates either clear text (almost never happens) or uncontested history behind the text.

As I’ve said many times, that method of constitutional interpretation is substantially different than the one employed by any modern Justice and most academic originalists (Mike Paulsen and Steve Smith are exceptions). My deferential approach as a matter of reason and logic is substantially different than the one employed by so-called living constitutionalists and New Originalists. The idea that allowing judges to update the application of “fixed” but hopelessly vague principles prioritizes text and history in constitutional litigation is not based on reason or logic but rather a deeply held faith that the New Originalist method is better or more legitimate than the “living constitutionalists” method. Leonard Leo made that clear at the National Federalist Society annual dinner last year. That faith is misplaced, wrong, and insulting to many lawyers, law professors and judges who believe exactly what Wurman, Somin, and Ramsey (as well as the so-called Originalist Justices) believe about the relevance (or lack thereof) of original expected applications to constitutional law.


Sean Kammer: Anti-Intellectualism, the Supreme Court, and the Legitimacy of Law
Michael Ramsey

Sean Kammer (University of South Dakota Law School) has posted 'Whether or Not Special Expertise Is Needed': Anti-Intellectualism, the Supreme Court, and the Legitimacy of Law (South Dakota Law Review, forthcoming) on SSRN.  Here is the abstract:

Recently, there has deservedly been much consternation regarding what some see as the increased politicization of the judiciary and the impact it could have on the law’s legitimacy within the broader political order. While that is a valid concern, we should not ignore other potential threats to the judiciary’s legitimacy, including the spread of a particularly virulent strain of anti-intellectualism. Notably, judges have shown an antipathy to expertise aimed not only toward highly technical or complex fields of study, but also toward scholarly fields that judges and lawyers have typically been willing to apply in their analyses, such as history. This article builds upon scholarship regarding the propensity of lawyers and judges to produce simplistic, selective, and ends-oriented histories, a practice that has come to be known as “law office history,” in support of their legal arguments and rulings. It does so by examining two Supreme Court opinions that represent fundamentally different judicial philosophies, thereby demonstrating that law office histories are not unique to any particular approach to judicial lawmaking. It then examines the history of how the judiciary (especially the Supreme Court) and the broader legal profession have come to attain their elite positions within the American social order. This history shows law’s position—indeed, its legitimacy—to be a tenuous one built in substantial part on the perceived intellectual character of law and the perceived intellectual aptitudes of its practitioners. This article thus concludes that the embrace of anti-intellectualism by the legal community, including the frequent dismissal of the work and methodologies of professional historians, threatens to undermine the rule of law itself.


Kent Barnett: Due Process for Article III—Rethinking Murray's Lessee
Michael Ramsey

Kent H. Barnett (University of Georgia School of Law) has posted Due Process for Article III—Rethinking Murray's Lessee (Geo. Mason L. Rev. __ (2019)) on SSRN.  Here is the abstract: 

The Founders sought to protect federal judges’ impartiality primarily because those judges would review the political branches’ actions. To that end, Article III judges retain their offices during “good behaviour,” and Congress cannot reduce their compensation while they are in office. But Article III has taken a curious turn. Article III generally does not prohibit Article I courts or agencies from deciding “public rights” cases, i.e., when the government is a party and seeking to vindicate its own actions and interpretations under federal law against a private party. In contrast, Article III courts generally must resolve cases that concern “private rights,” i.e., disputes under state or common law between private parties. In other words, despite Article III’s raison d’être, Article III is less likely to apply when the government is a party seeking to advance interests under federal law, and more likely to apply when the government has little to no interest in the controversy.

This essay for the George Mason Law Review’s “Agency Adjudication and the Rule of Law” symposium argues that the ever-expanding, shape-shifting public-rights exception to Article III—as it has developed from abstruse passages in Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1856)—was neither inevitable nor consonant with Article III purposes or separation-of-powers underpinnings of Due Process. The public-rights exception is best justified, in general, as extending only to those matters that due process does not implicate (and thus those that Congress could have decided on its own). Accordingly, the public-rights exception’s domain should have an inverse relationship with Due Process’s domain. The essay concludes by considering whether Article III should track traditional notions of due process or modern ones.


George Will on Hate Crimes and Federal Powers
Michael Ramsey

In the Washington Post, George Will: The federal hate crime law is both unconstitutional and unwise

After showing off his swastika tattoo, Randy Metcalf became involved in a barroom brawl. One of his opponents was an African American, whom he and his friends knocked unconscious. Metcalf repeatedly kicked him in the head and, according to a witness, said, “Die, [n-word], die.” Metcalf was sentenced to 10 years in prison under the federal Hate Crimes Prevention Act that was enacted six years earlier, in 2009.

Soon, perhaps at its conference this Friday, the Supreme Court will decide whether to hear Metcalf’s argument that the provision of the HCPA that he was convicted under is unconstitutional because none of the Constitution’s enumerated powers authorized Congress to enact it. The court should hear and endorse this argument, lest the nation’s dangerously attenuated commitment to limited government become even more so.

On the constitutional point:

Congress, always eager to slip what little remains of the Constitution’s leash that limits Congress’s powers by enumerating them, frequently justifies doing whatever it wants by saying that the behavior it wants to proscribe or prescribe affects interstate commerce and therefore comes under Congress’s enumerated power to regulate this. But although the commerce clause has been construed to be so elastic that it is almost entirely permissive, Congress, perhaps manifesting a vestigial capacity for embarrassment, looked elsewhere for the power to prohibit racially motivated crimes.

Embarrassingly, it pretended to act under the 13th Amendment. Ratified in 1865, it says:

“Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

To justify enacting the HCPA, Congress cited the power granted to it 144 years earlier to effectuate the end of slavery, which shows no sign of returning. Congress, surely with more audacity than sincerity, said that the 13th Amendment, written to erase slavery, authorizes Congress to pursue any goal that it asserts is in some way, however attenuated, a response to a “relic” or “incidents” or lingering reverberation of slavery.

This, says an amicus brief on Metcalf’s behalf, reflects “a growing movement in both academia and Congress to use the 13th Amendment to address a variety of social ills thought to be in some way traceable to, or aggravated by, slavery.” Yet the amendment’s legal significance is unusually clear and limited: It bans slavery, period. So, in 1883, the Supreme Court held that the amendment did not empower Congress to prohibit race discrimination in public accommodations. Congress did that 81 years later, properly acting under the commerce clause. If now the court allows Congress to construe — to flagrantly misconstrue, to its advantage — a notably unambiguous constitutional provision, the damage done by this misguided judicial deference will go beyond injuries to federalism. This dereliction of judicial duty will devalue the written Constitution itself.

The amicus brief mentioned in the article is by Peter Kirsanow and my colleague Gail Heriot, available here.  Prior Originalism Blog coverage of the case is here.

(Via Gail Heriot at Instapundit, who adds: " In a nutshell: Congress claims to be using its power to outlaw slavery in prohibiting hate crimes. And … well … hate crimes are bad things, but they aren’t slavery.").