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31 posts from January 2019


Emoluments and Corpus Linguistics (Updated)
Michael Ramsey

In the Washington Post, reporter Aaron Blake has this story: A big Trump case hinges on the definition of ‘emoluments.’ A new study has bad news for him.  From the introduction:

The [new] study concerns the “emoluments clause” case, which was brought by the attorneys general in Maryland and the District of Columbia. The case seeks to show Trump is violating the portion of the Constitution barring a public official from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” The case has progressed further than some experts predicted, with a U.S. district judge last year allowing it to proceed and launching the discovery process, in which Trump’s business dealings can be revealed.

Perhaps the biggest unresolved question hanging over the whole thing is this: What exactly is an “emolument"?

For Trump to have violated the Constitution, it requires his businesses' acceptance of foreign money to be understood as “emoluments.” But that is not a word that is widely in use today, nor has the clause been tested frequently in courts.

Trump’s legal team has pointed to some 18th-century dictionaries to argue for a narrow definition of an emolument as a profit specifically "arising from an office or employ” — i.e. something leveraged by a position of power. The payments to Trump by foreign entities staying at his hotel do not qualify, his attorneys argue, because they are separate from his work as president. The attorneys general argued for a broader definition that includes any benefit, advantage or profit, regardless of official actions.

The U.S. district judge sided with the attorneys general after a Georgetown University law professor studied many more dictionaries written at the time and found they favored the broader definition.

That decision is under appeal, but now a new study submitted as an amicus brief in the case bolsters it, using a much-broader survey of how the word was used in the late-1700s than even the dictionary study.

The study from Clark D. Cunningham at Georgia State University and Jesse Egbert of Northern Arizona University uses a scientific method called “corpus linguistics” that combines traditional linguistics with large sets of data, in the form of contemporary written texts.

And from later on:

Corpus linguistics has been around as a field of study since the 1960s, but it has become increasingly popular among constitutional “originalists” — those who believe we should decide cases based upon the original meaning. Utah Supreme Court Justice Thomas R. Lee, the brother of Sen. Mike Lee (R-Utah), has been a main proponent of its use in judicial opinions, and it has been used in Supreme Court cases in 2011 by Chief Justice John G. Roberts Jr.and last year by Justice Clarence Thomas. The Michigan Supreme Court issued an opinion in 2016 in which every justice cited corpus linguistics.

(Via How Appealing).

UPDATE: At Prawfsblawg, Carissa Byrne Hessick is skeptical: Corpus Linguistics Comes to the Fourth Circuit (and that’s not a good thing!). One of several criticisms:

For one thing, using the phrase “scientific investigation” connotes that the professors conducted an experiment, that the results of that experiment were objectively observable (rather than mere subjective impressions), and that the findings can be replicated.  This is reminiscent of claims by others who advocate for the use of corpus linguistics in statutory interpretation because those “findings are replicable and falsifiable.”

But corpus linguistics does not allow you to type a word or a phrase into a computer which spits out an answer to the question of meaning.  At best, corpus linguistics allows other people to replicate your search of a corpus linguistics database, but it does not allow them to replicate your findings.  That is because the findings of a corpus linguistics analysis require inference and interpretation.  I’ve made this argument before (using a case called Rasabout as my example).  But the subjective judgment required is on stark display in this brief.

Among other inferences, Professors Cunningham and Egbert conclude that, because the word “emolument” was often modified by the word “official,” that means the word “emolument” when it appeared without modification was generally understood to mean something broader than “profit arising from office.”  If everyone would have understood the term “emolument” to be limited to profits from holding office, so their argument goes, then “official emolument” would be an oddly redundant phrase.  It is for similar reasons, Professors Cunningham and Egbert explain, that we don’t often see the word “fork” modified by the word “metal”—we generally assume that if someone is referring to a fork, then he or she is referring to a metal fork.

This analysis by Professors Cunningham and Egbert may seem perfectly logical.  And you may even be convinced by it.  But the fact that something seems logical does not mean it is “scientific.”  To the contrary, many things that appear logically true end up being empirically false.  Once you have to rely on inferences to derive "findings" from your results, you have left the world of objective truth and moved into the realm of theory. 


Nathan Chapman: Due Process of War
Michael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted Due Process of War (Notre Dame Law Review, Vol. 94, 2018) on SSRN (71 pages).  Here is the abstract:

The application of the Due Process Clause of the Fifth Amendment to the government’s deprivation of rights during war is one of the most challenging and contested questions of constitutional law. The Supreme Court has not provided a consistent or historically informed framework for analyzing due process during war. Based on the English background, the text and history of the U.S. Constitution, and early American practice, this Article argues that due process was originally understood to apply to many but not to all deprivations of rights during war. It proposes a framework for analyzing due process during war that accords with this history and suggests useful principles for the “war on terrorism.”

First, all deprivations of rights during war were subject to the law of the land. During a state of war, rights were determined by the law of war, treaty, and statute. The President had no constitutional authority to deprive persons, including enemies, of rights contrary to that law. Second, many deprivations of rights during war were also subject to the Due Process Clause. The courts in England and the United States provided a number of judicial remedies to enforce the law of the land. Americans understood these remedies to be a requirement of due process. Importantly, those courts provided such remedies for many deprivations during war. English and American courts considered habeas petitions for enemy noncombatants; considered trespass suits brought against military officers by enemy noncombatants for deprivations of liberty and property; and reviewed the application of military law by courts martial. When such deprivations were within the jurisdiction of a federal court, they were subject to due process of law. Third, many deprivations of rights during war, though subject to the law of the land, were not subject to due process. The deprivation of rights of enemy combatants on a battlefield and the deprivations of rights of civilians by an officer exercising statutory authority to enforce martial law were subject to the law of the land, but not to due process.


William Baude & Stephen Sachs: Grounding Originalism
Michael Ramsey

William Baude (University of Chicago - Law School) and Stephen E. Sachs (Duke University School of Law) have posted Grounding Originalism (Northwestern University Law Review, forthcoming) on SSRN.  Here is the abstract: 

How is the Constitution to be interpreted? The "positive turn" in legal scholarship treats constitutional interpretation, like statutory or contractual interpretation, as governed by legal rules grounded in actual practice. In our legal system, that practice is committed to a certain form of originalism: our system's official story is that we follow the law of the Founding, plus all lawful changes made since.

Or so we've argued. Yet this answer produces its own set of questions. How can practice solve our problems, when there are so many theories of law, each giving practice a different role? Why look to an official story, when on-the-ground practice may be confused or divided, or may even make the story ring false? And why take originalism as the official story, when so many scholars and judges seem to reject it?

This Article offers a response to each. To the extent that legal systems are features of particular societies, a useful theory will have to pay attention to actual practice in those societies, including the particular aspects of legal practice we describe. This positive focus can indeed resolve a great many contentious legal disputes, as shared legal premises lead to conclusions that might surprise us, or that ultimately establish one side in a dispute as correct. The most serious challenge to our view is the empirical one: whether originalism is or isn't the official story of our law. Stripped of their jurisprudential confusion, however, the best competing accounts of our law seem to have far less supporting evidence than our own account. Focusing on social practice as it stands today turns out to direct our attention to the Founders, and to the changes over time that their law has recognized.



Earl  Maltz: The Coming of the Fifteenth Amendment
Michael Ramsey

Earl Maltz (Rutgers Law School) has posted The Coming of the Fifteenth Amendment: the Republican Party and the Right to Vote in the Early Reconstruction Era on SSRN;  Here is the abstract:

The year 2019 marks the one hundred fiftieth anniversary of one of the most significant moments in American constitutional history. On February, 25, 1869, more than two-thirds of the members of the House of Representatives approved the proposed Fifteenth Amendment. The next day, the Senate followed suit, and the proposed amendment was sent to the state legislatures for ratification. After being ratified by the requisite number of states, the Fifteenth Amendment became the last of the three Reconstruction amendments that fundamentally transformed both the structure of the Constitution and the nature of American federalism. 

The Fifteenth Amendment differed from its predecessors in a number of important ways. First, it was the only one of the Reconstruction amendments and remains the only part of the entire Constitution to focus explicitly on race. In addition, the amendment became the first provision of the Constitution to limit the power of the state governments to establish the qualifications for voters in elections for state office, providing that “[t]he right of citizens…to vote…shall not be denied or abridged…on account of race, color, or previous condition of servitude” and also vesting Congress with the authority to enforce this command by adopting “appropriate legislation.” Thus, among other things, the Fifteenth Amendment provided the most plausible source of congressional authority for the passage of the Voting Rights Act of 1965—a statute which was and continues to be, by any standard, one of the most important civil rights measures ever adopted by Congress. 

Nonetheless, unlike the Thirteenth and Fourteenth Amendments, legal scholars have shown little or no interest in exploring the background of the Fifteenth Amendment. This article is the first to describe both the sequence of events that led to the passage and ratification of the Fifteenth Amendment and the forces that shaped the amendment itself. 


Calvin TerBeek on Gun Rights and the Conservative Legal Movement
Michael Ramsey

At A House Divided, Calvin TerBeek:  Gun Rights as Glue? The Contested (and Uncontested) Legal Policy Terrain of the Conservative Legal Movement.  From the introduction:

On Tuesday, the Supreme Court reached down to the Second Circuit and agreed to hear New York State Rifle & Pistol Association v. City of New York (Garrett Epps and gun rights advocate David Kopel have useful summaries). It seems apparent now that Justice Kennedy has been replaced by Justice Brett Kavanaugh the Court is ready to start ramping up the political project, paused after Heller (2008), of strong judicial protection for gun rights. The breadth and scope of the protection the forthcoming opinion will set out is little in doubt. The more interesting question is whether Chief Justice Roberts keeps it for himself or hands it off.

But the case and the expected outcome serve as a useful entryway into thinking about the legal policy terrain of the conservative movement–what the groups making up the movement agree on and how that came to be.

One telling recent moment was libertarian originalist Ilya Somin’s statement on the Volokh Conspiracy defending and defining originalism against a legal realist critique (Eric Segall’s “Originalism as Faith“). Analogizing originalism to an ecumenical Christianity–an interesting analogical move, to be sure–Somin argued that there was substantial policy agreement among the various conservative and libertarian “originalisms” academic lawyers have devised:

“Moreover, there is more agreement about particular cases among originalists than Segall lets on. For example, there is widespread agreement among originalists that the original meaning sets tighter limits on the scope of federal power relative to the states than is currently the case under post-New Deal Supreme [Court] precedent, that the Constitution provides substantially greater protection for property rights than currently exists, and that the Second Amendment includes a relatively robust individual right to bear arms.”

In other words, Somin was asserting (correctly) that there is agreement between the two dominant strands of constitutional conservatism–social and economic–on rolling back the New Deal and Great Society administrative state, economic property rights, and Second Amendment rights. Conspicuously absent from the field of agreement, however, were the social and cultural issues–abortion, LGBT rights, and scope of religious freedom–that animate the socially conservative wing of movement conservatism. Put differently, of all the social issues–and as Matt Lacombe’s forthcoming Journal of Politics article usefully demonstrates, gun rights is very much a social identity cultivated by the NRA over decades–it is gun rights that has emerged as a cultural glue which helps stabilize the coalition and its legal policy goals. ...


William Thro:  Barnett’s & Bernick’s Theory of Constitutional Construction and School Finance Litigation
Michael Ramsey

William E. Thro (General Counsel, University of Kentucky) has posted Barnett’s & Bernick’s Theory of Constitutional Construction and School Finance Litigation (357 Education Law Reporter 464 (2018)) on SSRN.  Here is the abstract:

Although education is not a fundamental right under the United States Constitution, every State Constitution has a provision mandating, at a minimum, that the State provide a system of free public schools. In school finance litigation, the plaintiffs claim that the state legislature has violated the State Constitution by failing to fund the public schools in an equitable or adequate manner. Despite scores of cases and a significant amount of academic commentary, “there are few certainties in the school funding litigation process.”

Much of the uncertainty results from judicial confusion over the nature of constitutional analysis in school finance litigation. Because state high courts are the ultimate interpreters of state constitutions and because those decisions are binding on parties not before the Court, judges should use the original public meaning of the relevant state constitutional provisions rather than their own policy preferences. While the original public meaning of the State Constitution offers important insights concerning the existence and strength of a quality standard, the burden of proof, and a hierarchy of constitutional values, the question of whether the legislature has acted in accordance with the text is ambiguous. “When interpretation has provided all the guidance it can but more guidance is needed, constitutional interpretation must be supplemented by constitutional construction—within the bounds established by original meaning.” In other words, if the plain language of the constitutional provisions does not provide a definitive answer, then the court must build upon the framework established by the constitutional text. This process of “constitutional construction”—where the judiciary creates a coherent workable rule to resolve the current case and all future cases—has been particularly difficult in school finance litigation. Indeed, in several States, the high court’s failure has led to a genuine constitutional crisis where the legislature has refused to comply with the judicial mandates. 

In The Letter and The Spirit: A Unified Theory of Originalism, Randy Barnett and Evan Bernick offer a solution to the problem of constitutional construction. Recognizing the “letter” of the Constitution (the original public meaning of the text) will sometimes be inadequate to resolve a case, the scholars call for judges to focus on the “spirit” of the Constitution (the “functions, purposes, goals, or aims implicit in its individual clauses and structural design elements”). Contending that judges are fiduciaries bound to respect the Will of the People as expressed in the Constitution, Barnett & Bernick insist that judges have a duty to engage in good faith constitutional interpretation (following the original public meaning of the text) and constitutional construction (following the original functions of the provisions). Although the scholars were addressing analysis of the National Constitution in general, their work is equally applicable to the State Constitutions and to school finance litigation in particular. Indeed, Barnett’s and Bernick’s approach offers a coherent way to resolve school finance litigation while respecting the words actually adopted by the People when enacting their State Constitution. This Article’s purpose to explore the insights of Barnett’s and Bernick’s Letter & Spirit for constitutional construction in school finance litigation. 


The Very First Appropriations Bill Enacted by Congress
Andrew Hyman

There’s currently a debate about whether statutes and/or the Constitution presently allow (or should allow) the President to sometimes move appropriated funds from one pigeonhole to another, for example by declaring an “emergency.”  Mike Ramsey has recently discussed some of the legal ramifications here and here at this blog.  Right now, there are over thirty ongoing declared national emergencies.    Steve Vladeck has a nice summary of the legal kerfuffle at the NBC News website, dated January 24, 2019 in which he suggests it’s constitutional and lawful, but also suggesting that Congress ought to  write legislation sunsetting emergencies so they do not drag on for years or even decades without congressional assent. 

On the subject of appropriations, the Constitution gives Congress power to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.”  Moreover, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law....”    The current debate seems not so much about emergencies or border security, as it is about how specific Congress must be about its appropriations.  If Congress can constitutionally give a lump sum to the President each year for each department, then it seems very likely that Congress can give the President a sum of money for a tiny line item along with discretion to use it for a different line item within the same department. 

I want to do a little show and tell now, by displaying the very first appropriations bill enacted by Congress:  

That there be appropriated for the service of the present year the following sums, viz. A sum not exceeding $216,000 for defraying the expenses of the civil list, under the late and present Government; a sum not exceeding $137,000 for defraying the expenses of the Department of War; a sum not exceeding $190,000 for discharging the warrants issued by the late Board of Treasury, and remaining unsatisfied; and a sum not exceeding $96,000 for paying the pensions to invalids.

Here’s what the New York Times has said about this old statute: “That's it. Roughly one-third for the Federal payroll, another third for war and its veterans, and - believe it or not - a third for paying off debt. No tricky formulas, no extraneous amendments, and in that smaller, simpler America, no need for a deficit debate.”    Because this early statute lacked specificity, and because the Constitution’s  language about appropriations also lacks specificity, it seems unlikely to me that Congress must use enough specificity to virtually eliminate discretion from the president as to spending, including spending on purported emergencies.

Peter Tzeng on Treaty Interpretation
Michael Ramsey

Peter Tzeng (Foley Hoag LLP) has posted The Principles of Contemporaneous and Evolutionary Interpretation (Book Chapter, in Joseph Klingler, Yuri Parkhomenko & Constantinos Salonidis (eds.), Between the Lines of the Vienna Convention?: Canons of Construction and Other Principles of Interpretation in Public International Law, pp. 387-422 (2019)) on SSRN.  Here is the abstract: 

The principle of contemporaneous interpretation provides that the terms of a treaty shall be interpreted as they were understood at the time of the conclusion of the treaty. The principle of evolutionary interpretation, on the other hand, provides that the terms of a treaty shall be interpreted as they are understood at the time of the interpretation of the treaty. In certain circumstances, the application of these two principles can lead to very different interpretations of the same term in a treaty. The primary question of this chapter is thus as follows: when should one apply the principle of contemporaneous interpretation, and when should one apply the principle of evolutionary interpretation?

From an originalist perspective, one conclusion is that originalism is a conventional method of treaty interpretation, although it is not called originalism.

Via Larry Solum at Legal Theory Blog, who comments:

Fascinating paper.  This is another issue where the failure to distinguish interpretation (meaning) from construction (legal effect) makes it difficult to sort out the issues.  The actual communicative content (conveyed by linguistic meaning in context) of a treaty fixed at the time of drafting--this is simply a fact about the way linguistic communication works.  But a treaty term can refer to something that changes over time, and hence, the legal effect of the term may evolve.  But "evolutionary interpretation" could also refer to a quite different phenomenon, the use of "amending constructions" by tribunals that are, in effect, changing the terms of a treaty in the guise of interpretation.



Employment Division v. Smith under Attack? (Updated)
Michael Ramsey

Employment Division v. Smith (the Peyote Case) famously held (per Justice Scalia) that neutral laws of general application are constitutional under the free exercise clause even if they prohibit a core practice of a person's religion.  As discussed by Eugene Volokh, this conclusion may now be open to challenge: Will the Court Read the Free Exercise Clause as Often Mandating Religious Exemptions from Generally Applicable Laws? He explains:

[On Tuesday], Justices Alito, Thomas, Gorsuch, and Kavanaugh suggested that they would be open to revisiting this question, and to reversing Employment Division v. Smith. This came in their opinion respecting the Court's refusal to review Kennedy v. Bremerton School District, a Ninth Circuit decision upholding the dismissal of a public high school football coach for visibly praying at, among other places, the 50-yard-line after football games. The main arguments in Kennedy had to do with the Free Speech Clause, and most of the opinion dealt with that, though it ultimately concluded that there were procedural reasons why the Court was right to refuse to review the case.

But the four conservative Justices also added this:

In Employment Div. v. Smith, 494 U.S. 872 (1990), the Court drastically cut back on the protection provided by the Free Exercise Clause .... In this case, however, we have not been asked to revisit [this decision].

That's not a statement that Smith is wrong, or that those Justices would vote to overrule it -- but it certainly is a suggestion that they well might do that, and an invitation to litigants to ask for such overruling.

What's more, Justice Breyer had earlier (in City of Boerne v. Flores (1997)) made clear that he thought Employment Division v. Smith was indeed wrongly decided and should be overruled. To be sure, Breyer didn't join the four conservative Justices in Kennedy; but that might be because he disagreed with other parts of their opinion, and saw no need to write a separate opinion expressing his own views. (Many Justices don't write or join opinions related to the refusal to hear a case.) So it looks like there might be five Justices, and not just four, that are at the least open to overruling Smith.

If there is an attack on Smith, it will almost surely involve appeals to original meaning.  As I noted in this article, Justice Scalia's argument on original meaning in the Smith case was surprisingly weak -- he primarily seemed to rest on the proposition that the claimants had not shown any original meaning in support of their position, rather than any affirmative originalist evidence in support of his position.  Scalia provided some originalist evidence in support of Smith in his concurring opinion in Boerne v. Flores, but in the meantime originalist law professor Michael McConnell wrote a comprehensive article defending the opposite view: Free Exercise Revisionism and the Smith Decision, 57 U. Chi. L. Rev. 1109 (1990).  [Sorry, no link; the Chicago Law Review annoyingly does not have its back issues online].  Thus Smith is exposed to originalist attack, as academically oriented Justices like Thomas and Gorsuch surely know.

UPDATE:  Here is a link to Professor McConnell's article (thanks to Will Baude for the pointer & apologies to the Chicago Law Review -- apparently I was not looking in the right place).


Twenty-first Amendment Originalism?
Michael Ramsey

Last week's U.S. Supreme Court argument in Tennessee Wine and Spirits Retailers Association v. Blair may indicate an opinion (or opinions) exploring the original meaning of the 21st Amendment (repeal of prohibition). 

The question presented is "Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time?"  Tennessee's residency requirement would very likely be unconstitutional under the dormant commerce clause (or originalists might prefer the Article IV privileges and immunities clause). But the 21st Amendment, Section 2, says that "The transportation or importation into any State, Territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."  Does this validate otherwise-problematic state regulations of alcohol?  Past Supreme Court cases have been, shall we say, not entirely consistent.  At several points in the argument the Justices explored the Amendment's original meaning (without obvious success).  As described at SCOTUSblog: 

Representing the retailers defending the residency requirement, attorney Shay Dvoretzky told the justices that ... [t]he 21st Amendment . . . was intended to give back the powers that the states had had before Prohibition under two federal laws – the Wilson Act and the Webb-Kenyon Act – that gave them “near complete” power to regulate the distribution of liquor. States can do almost anything, Dvoretzky stressed, as long as they treat in-state and out-of-state products the same, which the residency requirement does.


Justice Brett Kavanaugh was skeptical. The problem I’m having, Kavanaugh said to Dvoretzky, is that nothing in the text of the 21st Amendment – which bars the “transportation or importation” of liquor into a state in violation of that state’s laws – gives the states complete authority over the distribution of liquor. All that the 21st Amendment was intended to do, Kavanaugh suggested, was let states remain “dry” if they opted to do so; it wasn’t intended to allow states to pass laws that discriminate against out-of-state interests.


Appearing on behalf of Total Wine and the Ketchums, lawyer Carter Phillips reiterated Kavanaugh’s suggestion (later echoed by Alito) that the 21st Amendment does not give states broad authority to regulate alcohol but instead was intended to allow states that had decided to remain “dry” to stop the importation of alcohol from other states.

Notably, the court of appeals held the state's residency requirement unconstitutional over a partially originalist dissent by Judge Jeffrey Sutton.