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32 posts from February 2019


Neal Goldfarb: Corpus Linguistics in Legal Interpretation
Michael Ramsey

Neal Goldfarb (LAWnLinguistics blog; Visiting Scholar, Georgetown) has posted Corpus Linguistics in Legal Interpretation: When Is It (In)appropriate? (53 pages) on SSRN.  Here is the abstract:

Corpus linguistics can be a powerful tool in legal interpretation, but like all tools, it is suited for some uses but not for others. At a minimum, that means that there are likely to be cases in which corpus data doesn’t yield any useful insights. More seriously, in some cases where the data seems useful, that appearance might prove on closer examination to be misleading. So it is important for people to be able to distinguish issues as to which corpus results are genuinely useful from those in which they are not. A big part of the motivation behind introducing corpus linguistics into legal interpretation is to increase the sophistication and quality of interpretive analysis. That purpose will be disserved corpus data is cited in support of conclusions that the data doesn’t really support. 

This paper is an initial attempt to deal with problem of distinguishing uses of corpus linguistics that can yield useful data from those that cannot. In particular, the paper addresses a criticism that has been made of the use of corpus linguistics in legal interpretation — namely, that that the hypothesis underlying the legal-interpretive use of frequency data is flawed. That hypothesis, ac-cording to one of the critics, is that “where an ambiguous term retains two plausible meanings, the ordinary meaning of the term... is the more frequently used meaning[.]” (Although that description is not fully accurate, it will suffice for present purposes.)

The asserted flaw in this hypothesis is that differences in the frequencies of different senses of a word might be due to “reasons that have little to do with the ordinary meaning of that word.” Such differences, rather than reflecting the “sense of a word or phrase that is most likely implicated in a given linguistic context,” might instead reflect at least in part “the prevalence or newsworthiness of the underlying phenomenon that the term denotes.” That argument is referred to in this paper as the Purple-Car Argument, based on a skeptical comment about the use of corpus linguistics in legal interpretation: “If the word ‘car’ is ten times more likely to co-occur with the word ‘red’ than with the word ‘purple,’ it would be ludicrous to conclude from this data that a purple car is not a ‘car.’”

This paper deals with the Purple-Car Argument in two ways. First, it attempts to clarify the argument’s by showing that there are ways of using corpus linguistics that do not involve frequency analysis and that are therefore not even arguably subject to the Purple-Car Argument. The paper offers several case studies illustrating such uses.

Second, the acknowledges that when frequency analysis is in fact used, there will be cases that do implicate the flaw that the Purple-Car Argument identifies. The problem, therefore, is to figure out how to distinguish these Purple-Car cases from cases in which the Purple-Car Argument does not apply. The paper discusses some possible methodologies that might be helpful in making that determination. It then presents three case studies, focusing on cases that are well known to those familiar with the law-and-corpus-linguistics literature: Muscarello v. United States, State v. Rasabout, and People v. Harris. The paper concludes that the Purple-Car Argument does not apply to Muscarello, that it does apply to Rasabout, and that a variant of the argument applies to the dissenting opinion in Harris.

Via Larry Solum at Legal Theory Blog, who comments:

This paper is a much needed corrective to the misunderstandings generated by over-reliance on frequency data (both pro and con) in some of the early law and corpus linguistics work.  If you have any interest in the interpretation of legal texts, I urge you to read this paper.

Highly recommended.  Download it while it's hot!


Michael Dorf and Martin Lederman on Justice Thomas on Originalism and NYT v. Sullivan
Michael Ramsey

At Dorf on Law, Michael Dorf criticizes Justice Thomas' criticism of New York Times v. Sullivan:  How to Test Whether Justice Thomas Favors "Halfway Originalism".  Among other important points, he asks:

Why does Justice Thomas object to Sullivan? ... Justice Thomas thinks that a state should be allowed to adopt the rules of Sullivan and its progeny in "striking an acceptable balance between encouraging robust public discourse and providing a meaningful remedy for reputational harm." However, he would reject Sullivan as a constitutional rule, because he does not think it accurately captures the original understanding of the First Amendment.

That contention is vulnerable on its own terms. As I have argued elsewhere, Justice Thomas sometimes officially professes the lately fashionable version of originalism, according to which courts should give effect to a constitutional provision's original public meaning but not to the concrete expectations or intentions of a provision's framers and ratifiers (except insofar as they shed light on such original public meaning); however, when it comes time to consider a provision's original meaning, Justice Thomas frequently proceeds like an old-style originalist concerned about expectations and intentions. Perhaps a case could be made that the original meaning of "freedom of speech" did not include unintentionally false statements about public officials and public figures, but Justice Thomas does not make that case.

At Balkinization, Marty Lederman makes a similar point at much greater length.  Here is part of the argument:

Justice Thomas's mantra of fidelity to "original meaning" appears to be an effort to portray himself as a practitioner of the “New Originalism,” a school of thought that (in theory) has abandoned the old-fashioned, discredited “old originalism” ideas (associated with Robert Bork, et al.) that the Constitution should be interpreted according to the Framers’ intentions or expectations in favor of the idea that “constitutional interpretation is the discovery of the linguistic meaning of the constitutional text.

For all his talk about original “meaning,” however, in his McKee opinion Justice Thomas never once discusses what the actual semantic meaning (public or otherwise) of the words of the First and Fourteenth Amendments might have been in 1789 and 1868.  Indeed, he pays virtually no attention to the text at all.  Instead, Thomas’s entire critique consists of describing the common law of libel and defamation when the Amendments (especially the First Amendment) were ratified; apparently applying an (unstated) presumption that the framers didn’t intend or foresee that the Constitution would upend that common law (as Steve Sachs might put it, that they intended to preserve a “constitutional backdrop”—but cf. my discussion at pages 1589-92 here); and then concluding that the "original understanding was that the common law would be unaffected."

It’s not until page 10 of his opinion that Thomas even quotes the text of the Free Speech Clause—and then, instead of trying to discern its “meaning,” he simply invokes with approval Justice White’s dissent in Gertz, which was expressly based upon a view of original “intent,” not textual meaning.  (Thomas even goes so far as to emphasize White's argument that “[s]cant, if any, evidence exists that the First Amendment was intended to abolish the common law of libel, at least to the extent of depriving ordinary citizens of meaningful redress against their defamers.”)

Justice Thomas’s opinion, then, is a classic example of “original intent” and “original expected applications” originalism, of the sort the “New Originalism” had, in theory, rejected and interred forever—draped in the garments of the new “original public meaning” originalism. 

I think there is some force to these objections, but only some.  Several points can be made in response:

1.  Essentially everyone agrees that the framers' intentions and expectations, and especially the legal environment in which they wrote, are important clues to original meaning, even while the original meaning  remains the ultimate objective of the inquiry.  Professor Lederman acknowledges this, and notes a response by originalism theorist Larry Solum: 

[Professor Solum] noted that intent and expectations at the time of ratification—as reflected in practices that continued at the time—can provide evidence that’s relevant to what the public meaning of the text might have been.


[Professor Solum also noted] that “the common law background may be part of the OPM of the 1A if the phrases ‘freedom of speech’ and ‘freedom of the press’ refer to preexisting legal rights.”  In other words, perhaps the phrases “freedom of speech” and “freedom of the press” had specialized meanings at the time that were reflected in the existing state common law doctrines, such that the “freedom” being protected by the First Amendment was merely whatever “freedoms” one had to speak and publish before the Amendment was ratified, i.e., “the freedom of speech circa 1791.”

I agree on both points, and they suggest that at least to some people, there is not so large a gap between original understanding and original meaning.  Much evidence that is relevant to original intent is also relevant to original meaning

2.  Justice Thomas (and previously Justice Scalia) have indeed embraced the idea that the First Amendment protected a pre-existing right of free speech ("the" freedom of speech).  I agree that Justice Thomas could have been more clear on this point in his concurrence, but I think it evident that this is his theory.  (He could, of course, be wrong about this, but that does not mean he is not seeking the Amendment's original meaning -- only that he is perhaps not getting it right).  Moreover, this is a common approach adopted by Thomas, Scalia and other originalists with respect to other parts of the Bill of Rights, including for example the Second Amendment and criminal procedure provisions such as the confrontation clause.  (See here for my discussion of Scalia's approach).

Looking at the common law background to understand the meaning of rights provisions is not really the same as the old-style original intent.  As Professor Lederman acknowledges, in quoting Stephen Sachs, it's common for pre-existing legal conditions to give meaning to legal writing.  That's different from trying to guess what particular framers would have thought about an issue based on their subjective intentions, which is the most criticized part of the old "original intent" model.

Professor Lederman goes on to argue:

If one were to have asked virtually any person in 1789 whether her “freedom” to “speak” would in any way be “abridged” if she were assessed a financial penalty for criticizing a public figure or official, the answer would almost surely have been “yes, of course,” based simply on the common public meaning of those three words.  To be sure, such a person might also have been aware that states at the time exercised the lawful power to do just that—i.e., to assess penalties for defamatory speech of public figures, sometimes even when the speech was truthful.  Would that have changed their view of the semantic meaning of the words of the Free Speech Clause?  Presumably not:  That ubiquitous practice would only have suggested to such a person that the states could lawfully “abridge” their “freedom” to “speak” under certain circumstances (and also, perhaps, that the Constitution was estopping Congress from henceforth doing the same).

Perhaps, but he does not provide any evidence that this is true, and it seems like speculation.  Moreover, the originalist question is whether a limit on libel would abridge the freedom of speech.  Maybe this means the same as abridging "her freedom to speak" generally, as Professor Lederman says; but maybe instead (as argued above) it refers to abridging a pre-existing natural or common law right which included some speech but not others, and which thus is "abridged" by some speech restrictions but not others. The right question to ask is whether it was commonly believed that laws against libel abridged "the freedom of speech."

My point is not to try to resolve this debate (I'm not a First Amendment scholar), but to point out that both positions are efforts to understand the original meaning.  Again, I think Professor Lederman is right that Justice Thomas could have been more clear on this point, but I also think it's clear enough, especially considering other writings, that this is what he meant.

3.  It's worth pointing out that Justice Thomas wasn't trying to be definitive; he was simply raising the issue.  It had not been argued and so was not before the Court.  He was simply saying that in an appropriate case that Sullivan should be reconsidered because (a) the Sullivan Court itself did not justify its conclusion on the basis of original meaning and (b) a quick look at libel law in the founding era suggests that perhaps people did not think it abridged the freedom of speech since no one seemed to have a problem with it (or at least with some versions of it).  But Thomas would presumably be open to arguments that either the common understanding of libel law was that it did abridge the freedom of speech or that libel law was subject to certain limits which the First Amendment constitutionalized and which might support the outcome in Sullivan and elsewhere.

4.  Professor Dorf makes this point, with which I entirely agree:

Moreover, it is hardly clear why Justice Thomas focuses his McKee opinion on the pre-1791 understanding rather than the pre-1868 understanding. Sullivan and its progeny limit the application of state defamation law, and in doing so they rely on the Fourteenth Amendment's application of the First Amendment to the states, not on the First Amendment itself. Just the day after he wrote in McKee, Justice Thomas concurred separately in Timbs v. Indiana, in which he reiterated his view that the Privileges or Immunities Clause of the Fourteenth Amendment, rather than its Due Process Clause, does the job of incorporating most of the Bill of Rights. Yet whether it's Due Process or Privileges or Immunities that makes a Bill-of-Rights provision applicable to the states, the key date for an originalist should be 1868, not 1791. Perhaps Justice Thomas has some theory of why the earlier meaning nonetheless controls, but if so, he has not shared it with the public.

I bet, though, that the 1868 understanding was not materially different from the 1791 understanding.

5.  And finally, look how much interesting academic discussion Justice Thomas has generated.  We should celebrate his thoughtful and provocative concurrence, whatever we think of its merits.


Stephanie Barclay et al. on Corpus Linguistics and the Establishment Clause
Michael Ramsey

Stephanie H. Barclay (BYU Law School), Brady Earley (Brigham Young University, students) and Annika Boone (Harvard Law School, students) have posted Original Meaning and the Establishment Clause: A Corpus Linguistic Analysis (Arizona Law Review, Vol. 61, 2019) (60 pages) on SSRN.  Here is the abstract:

Debates about the original meaning of the Establishment Clause are gaining increased attention in light of the Supreme Court’s recent cert grant in The American Legion v. American Humanist Association, a case about government displays of religious symbols. Scholars have long relied on a host of different methodologies to advance various theories about what the Establishment Clause means. But these methods, often relying on isolated historical examples or unrepresentative samples of language, provide limited insights about how language was understood by the greater population during the founding era. And some proponents of various historical interpretations declare that supporters of other theories have cherry-picked sources or misinterpreted them. Corpus linguistics provides another method of revealing important historical information about the Establishment Clause’s original meaning, but in a systematic and data-driven way. 

This Article provides the first corpus linguistics analysis of the Establishment Clause, using the tools of a corpus and a sufficiently large and representative body of data drawn from the relevant time period to provide additional information about probable founding-era meaning. This Article does not discount other methodologies or claim to definitively prove the meaning of the Establishment Clause. But this Article does add a piece to the Establishment Clause puzzle, providing information about the most salient characteristics of an established religion, or in other words, those characteristics implicated most often (or not at all) in founding era mentions of established religion. This Article also provides a more rigorous and transparent method for investigating original public meaning than has been employed by other scholars. And by sifting through hundreds of results discussing establishment in a religious context, our Article is able to bring to light new historical sources that have been previously overlooked. 

This Article’s findings indicate that by far the most common characteristic discussed in the context of an establishment of religion involved legal or official designation of a specific church or faith. Beyond that, the most common characteristics of an establishment of religion involved (1) government coercion of individuals involving prohibitions or mandates on religious practices enforced by legal penalties or government persecution of dissenters, (2) government interference with affairs of both the established churches and non-established churches, (3) preferential public support of the established church (particularly in the form of direct taxes levied for the church), and (4) restrictions of civic or political participation to members of the established church. Our results are thus consistent with a modern constitutional theory that treats any one of these characteristics as a sufficient condition for an Establishment Clause violation. On the other hand, our data did not reveal confirming evidence for a number of current theories regarding the original meaning of the Establishment Clause, including (1) concerns about government display of religious symbols, (2) enactment of Sunday closing laws, (3) prayers or religious practices in public schools, or (4) providing any religious exemptions to religious believers in an even-handed way. Our results indicate that public support of religious organizations was only concerning historically in certain limited circumstances, such as when provided preferentially only to the established church. Of note for religious symbols, our findings indicate when concerns about such symbols or imagery did arise, they arose in the context of government suppressing or destroying symbols of dissenting churches. The pending American Legion case may provide an important vehicle for the Supreme Court to revise much of its current jurisprudence that is out of step with an approach that focuses on historic hallmarks of established religion that gave rise to the Establishment Clause.

The Supreme Court will hear arguments in The American Legion v. American Humanist Association on Wednesday.


Martin Minot: The Irrelevance of Blackstone
Michael Ramsey

Martin Minot (J.D/M.A. candidate '19, University of Virginia) has posted The Irrelevance of Blackstone: Rethinking the Eighteenth-Century Importance of the Commentaries (Virginia Law Review, Vol. 104, No. 7, 2018) (39 pages) on SSRN. Here is the abstract:

This Note challenges William Blackstone's modern position as the "oracle of the law" in the eighteenth century. In a time when the status of legal doctrines at the Founding is of renewed significance in interpreting the Constitution, it is especially important to ensure that the sources of these doctrines comport with historical practices. This Note looks beyond the usual story of Blackstone's influence, as told by the significant circulation of his work. It turns instead to the work's practical significance for legal education in the decades preceding the Constitutional Convention. By using curricula and student notes-referred to as commonplace books-to discover what was actually considered influential in the legal profession of the period, a more comprehensive perspective of eighteenth-century legal thought is uncovered While Blackstone was apparently known to these late colonists, his work was far from "the most widely read law book in eighteenth-century America. " Instead, more traditional treatises and English reporters dominated legal learning until at least 1787. It is these admittedly more impenetrable works which should inform our understanding of the common law as it existed at the Founding.

Via Legal History Blog, where a reader added this comment:

... While I think it is an important realization that most of the leading jurists and lawyers did not find Blackstone [r]elevant in the first few years of the founding, I completely disagree with the implications that Mr. Minot reaches. It is important to remember that most of the jurists and lawyers at the time of the Founding were not trained. In Virginia specifically, there were dozens of supplements and guide-books for the "country" jurists and lawyers. See generally, Roeber, Faithful Magistrates and Republican Lawyers. Blackstone and his Commentaries were viewed by at least the Virginia "country" party of the law as an interloper. Lawyers and jurists like Jefferson, Madison, Wythe, Marshall, and Tucker used Blackstone, his commentaries, and other such books as a tool to standardized legal training and education, and met considerable opposition by the "country" political and legal party in Virginia. See generally, Roeber, Faithful Magistrates and Republican Lawyers; Miller, Juries and Judges versus the Law: Virginia's Provincial Legal Culture. To my knowledge, this same debate played out to different degrees in other states. So yes, Blackstone was not viewed by most of the legal community in Revolutionary-era America as the preeminent scholar of the law. However, his writings were still instrumental in forming the thoughts of the leading "court" lawyers and jurists, who formed the legal and political system we recognize today.


University of Virginia Symposium on the Future of Originalism
Michael Ramsey

From the University of Virginia media page: 

Judges, scholars and practitioners will focus on constitutional interpretation and re-examine a landmark civil liberties case during a conference Feb. 28 at the University of Virginia School of Law.

“The Future of Originalism: Conflicts and Controversies,” sponsored by the Law School’s Federalist Society chapter, will begin at 9:45 a.m. in Caplin Pavilion. Judge Thomas B. Griffith ’85 of the U.S. Court of Appeals for the District of Columbia Circuit will introduce the symposium.

The event, which is open to the public, concludes with a re-argument of the Slaughter-House Cases, a Reconstruction-era Supreme Court ruling that narrowed citizenship rights in the privileges or immunities clause of the Constitution.

And here is the schedule:

Feb. 26, 9:45 a.m.

Introduction, Judge Thomas B. Griffith ’85, U.S. Court of Appeals for the District of Columbia Circuit

Introduction: Leslie Kendrick ’06, Vice Dean and David H. Ibbeken ’71 Research Professor of Law, University of Virginia School of Law

10 a.m.

Panel 1 | The Due Process Clause: Its Original Meaning and Future Application

Scott Ballenger ’96, Partner, Latham & Watkins;  Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center;  John Harrison, James Madison Distinguished Professor of Law, University of Virginia School of Law;  Julia Mahoney, John S. Battle Professor of Law, Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low, University of Virginia School of Law

Moderator: Judge Diane S. Sykes, Seventh U.S. Circuit Court of Appeals

11:30 a.m.

Lunch; Keynote Debate | Judicial Engagement v. Judicial Restraint: Equally Compatible With Originalism?  Clark Neily, Vice President for Criminal Justice, Cato Institute; Mark Pulliam, Contributing Editor, Law and Liberty

Moderator: Lillian BeVier, David and Mary Harrison Distinguished Professor of Law Emeritus

1 p.m.

Panel 2 | Originalism Where the Text Runs Out

Joel Alicea, Cooper & Kirk; Stephen Sachs, Professor of Law, Duke University School of Law; Lawrence Solum, Carmack Waterhouse Professor of Law, Georgetown University Law Center

Moderator: Judge John K. Bush, Sixth U.S. Circuit Court of Appeals

2:40 p.m.

Finale | Slaughter-House Cases Re-Argument

Introduction: Nicholas Mosvick ’10, Author, Bench Memorandum

Counsel: Dominic Draye, Solicitor General, State of Arizona

Counsel: Elbert Lin, Partner, Hunton Andrews Kurth

Judges: Judge Thomas B. Griffith, Judge Diane S. Sykes, Judge John K. Bush


Cass Sunstein on Justice Thomas on New York Times v. Sullivan
Michael Ramsey

At Bloomberg, Cass Sunstein (Harvard): Clarence Thomas Has a Point About Free-Speech Law --The constitutional foundations of New York Times v. Sullivan are not looking all that firm.  From the introduction:

With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has … performed a public service. Not necessarily because he’s right, but because there’s a serious issue here.

To see why, imagine that a lawyer, a blogger, a talk-show host or a newspaper lies about you -- and in the process destroys your reputation. Your accuser might say that you are a pedophile, a drug peddler, an arsonist or a prostitute. In an hour, the lie goes around the world.

If you count as a public figure, does the Constitution really mean that the law cannot provide you with any kind of redress?

And from later in the post:

Thomas is an “originalist”; he believes that interpretation of the Constitution should be settled by reference to the “original public meaning” of its terms. Thomas offers considerable evidence that at the time of ratification, those who wrote and ratified the Bill of Rights were comfortable with libel actions – and that they did not mean to impose anything like the “actual malice” standard.

A defamed individual (including a public figure) needed only to prove that a written publication was false and that it subjected him to hatred, contempt or ridicule. And for 170 years, the Supreme Court never held that the First Amendment forbids the states from protecting people from libel.

Thomas concludes that New York Times v. Sullivan, and the many subsequent decisions implementing it, were “policy-driven decisions masquerading as constitutional law.”

There are strong objections to originalism, of course. But whatever your theory of constitutional interpretation, it is hardly obvious that the First Amendment forbids rape victims from seeking some kind of redress from people who defame them.

RELATED:  At Constitution Daily, Lyle Denniston: Justice Thomas, originalism and the First Amendment.

Chief Judge Peter Eckerstrom on the Senate's Duty to Consider Nominees
Michael Ramsey

Recently published, the the University of Pennsylvania Journal of Constitutional Law, Chief Jusge Peter Eckerstrom: Yes, the Senate Elevated Partisan Political Goals Over Constitutional Text When It Refused to Consider President Obama’s Nominee to Replace Justice Scalia21(3) U. Pa. J. Const. L. (forthcoming circa Mar. 2019), 21(4) U. Pa. J. Const. L. Online 1 (Feb. 2019).

This is a reply to Seth Barrett Tillman, On the Senate’s Purported Constitutional Duty to Meaningfully Consider Presidential Nominees to the Supreme Court of the United States: A Response to Chief Judge Eckerstrom, 21(3) U. Pa. J. Const. L. (forthcoming circa Mar. 2019), 21(3) U. Pa. J. Const. L. Online 1 (Feb. 2019).

And Chief Judge Eckerstrom's original article is The Garland Nomination, the Senate’s Duty, and the Surprising Lessons of Constitutional Text, 21 U. Pa. J. Const. L. 33 (2018).

Regular readers will know that I am (with all respect to Chief Judge Eckerstrom) entirely with Professor Tillman on this one.


USD Originalism Works-in-Progress Conference Today and Tomorrow
Michael Ramsey

The Tenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the Center for the Study of Constitutional Originalism,  University of San Diego Law School, will take place today and tomorrow.  Here is the schedule: 

Friday, Feb. 22

2:30 – 2:45      Opening Remarks, Mike Rappaport (USD)

2:45 – 4:00    First Paper:  Fred Schauer (Virginia): Against the Interpretation-Construction Distinction. Commentator:  Keith Whittington  (Princeton Political Science); Moderator:  Larry Alexander (USD)

4:15 – 5:30      Second Paper: Andrew Kent (Fordham) & Ethan Leib (Fordham): “Faithful Execution” and Article II.  Commentator:  Bernadette Meyler (Stanford); Moderator:  Laurie Claus (USD)

Saturday, Feb. 23

9:30 – 10:45    Third Paper: William Treanor (Georgetown):  Framer’s Intent: Gouverneur Morris, the Committee of Style, and the Creation of the Federalist Constitution.  Commentator:  Jonathan Gienapp (Stanford History);  Moderator: Tom Colby (George Washington)

11:00 – 12:15  Fourth Paper:  Robert Reinstein (Temple): The Implied Powers of the United States. Commentator:  Michael McConnell (Stanford); Moderator: Shaakirrah Sanders (Idaho)

1:30 – 2:45      Fifth Paper: Jennifer Mascott (George Mason):  The Ratifiers’ Theory of Officer Accountability. Commentator:  Will Baude (Chicago);  Moderator: Maimon Schwarzschild (USD)

3:00 – 4:15      Sixth Paper: Jeremy Telman (Valparaiso):  John Marshall’s Constitution: Distinguishing Originalism From Ipse Dixit in Constitutional Adjudication. Commentator:  Michael Paulsen (St. Thomas);  Moderator:  Don Dripps (USD)

4:30 – 5:45      Seventh Paper:  Josh Blackman (South Texas) & James Phillips (Stanford): Corpus Linguistics and the Second Amendment. Commentator:  Nelson Lund (George Mason); Moderator: Steve Smith (USD)

Seth Barrett Tillman: Understanding the Jefferson Diplomatic Gifts
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) has posted Part I, Understanding the Jefferson Diplomatic Gifts: A Response to Dr. Andrew Fagal on SSRN.  Here is the abstract: 

This paper is a response to Andrew Fagal, Thomas Jefferson and the Arabian Stallion: A Research Note on the Third President and the Foreign Emoluments Clause, 1(4) LAW AND HIST. REVIEW: THE DOCKET (Dec. 2018). [ed: available here]

Closing: In answering this question, i.e., Does the Foreign Emoluments/Gifts Clause apply to presidents?, my own prior research had examined the Mandan gifts and the Tsar’s gift. I did so because a president’s receiving, accepting, and keeping a diplomatic gift is some evidence that he believes his conduct in this regard is legal, i.e., compliant with the Constitution. Where the president accepts the diplomatic gift in full public view absent complaint by the public (or objections raised by later commentators), then such conduct carries a presumption that he and the contemporaneous public believed the president’s conduct was legal. Finally, where the public is in the know, where it does not complain, and where a significant element of that public is composed of the president’s opponents in Congress, in the press, and in the country at large, then that is some further and significant substantial indication that the public agrees that the president’s conduct is legal. In regard to the Mandan gifts and the Tsar’s gift, Jefferson did not clearly speak to any constitutional provision controlling his conduct; rather, to the extent he spoke at all, he reported a personal rule of conduct—a rule which he was, on occasion, willing to bend, if not waive. All told, that is some evidence, albeit not conclusive evidence, that in Jefferson’s day, the Foreign Emoluments/Gifts Clause was not understood as applying to the president (and, by implication, to other elected federal officials).


Originalism, States and Excessive Fines, Decided
Michael Ramsey

Yesterday the Supreme Court issued its decision in Timbs v. Indiana, the case asking whether the Eighth Amendment's excessive fines clause applies against the states through the Fourteenth Amendment.  As widely predicted, the decision was unanimous in the affirmative.  Also as predicted (at least on this blog) there was lots of originalism in the opinions.

Justice Ginsburg's opinion for eight Justices (all except Thomas) contains an extensive historical account.  Here is part of it:

The Excessive Fines Clause traces its venerable lineage back to at least 1215, when Magna Carta guaranteed that “[a] Free-man shall not be amerced for a small fault, but after the manner of the fault; and for a great fault after the greatness thereof, saving to him his contenement . . . .” §20, 9 Hen. III, ch. 14, in 1 Eng. Stat. at Large 5 (1225).  As relevant here, Magna Carta required that economic sanctions “be proportioned to the wrong” and “not be so large as to deprive [an offender] of his livelihood.” Browning Ferris, 492 U. S., at 271. See also 4 W. Blackstone, Commentaries on the Laws of England 372 (1769) (“[N]o man shall have a larger amercement imposed upon him, than his circumstances or personal estate will bear . . . .”)....

Despite Magna Carta, imposition of excessive fines persisted. The 17th century Stuart kings, in particular, were criticized for using large fines to raise revenue, harass their political foes, and indefinitely detain those unable to pay. E.g., The Grand Remonstrance ¶¶17, 34 (1641), in The Constitutional Documents of the Puritan Revolution 1625–1660, pp. 210, 212 (S. Gardiner ed., 3d ed. rev. 1906); Browning-Ferris, 492 U. S., at 267. When James II was overthrown in the Glorious Revolution, the attendant English Bill of Rights reaffirmed Magna Carta’s guarantee by providing that “excessive Bail ought not to be required, nor excessive Fines imposed; nor cruel and unusual Punishments inflicted.” 1 Wm. & Mary, ch. 2, §10, in 3 Eng. Stat. at Large 441 (1689).

Across the Atlantic, this familiar language was adopted almost verbatim, first in the Virginia Declaration of Rights, then in the Eighth Amendment, which states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 

Moving to the drafting of the Fourteenth Amendment:

An even broader consensus obtained in 1868 upon ratification of the Fourteenth Amendment. By then, the constitutions of 35 of the 37 States—accounting for over 90% of the U. S. population—expressly prohibited excessive fines. Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868, 87 Texas L. Rev. 7, 82 (2008).

Notwithstanding the States’ apparent agreement that the right guaranteed by the Excessive Fines Clause was fundamental, abuses continued. Following the Civil War, Southern States enacted Black Codes to subjugate newly freed slaves and maintain the prewar racial hierarchy. Among these laws’ provisions were draconian fines for violating broad proscriptions on “vagrancy” and other dubious offenses. See, e.g., Mississippi Vagrant Law, Laws of Miss. §2 (1865), in 1 W. Fleming, Documentary History of Reconstruction 283–285 (1950). When newly freed slaves were unable to pay imposed fines, States often demanded involuntary labor instead. E.g., id. §5; see Finkelman, John Bingham and the Background to the Fourteenth Amendment, 36 Akron L. Rev 671, 681–685 (2003) (describing Black Codes’ use of fines and other methods to “replicate, as much as possible, a system of involuntary servitude”). Congressional debates over the Civil Rights Act of 1866, the joint resolution that became the Fourteenth Amendment, and similar measures repeatedly mentioned the use of fines to coerce involuntary labor. See, e.g., Cong. Globe, 39th Cong., 1st Sess., 443 (1866); id., at 1123–1124.

Justice Gorsuch wrote a one-paragraph concurrence, the principal point being to avoid fully endorsing incorporation through the due process clause: 

As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause. See, e.g., post, at 1–3 (THOMAS, J., concurring in judgment); McDonald v. Chicago, 561 U. S. 742, 805–858 (2010) (THOMAS, J., concurring in part and concurring in judgment) (documenting evidence that the “privileges or immunities of citizens of the United States” include, at minimum, the individual rights enumerated in the Bill of Rights); Wildenthal, Nationalizing the Bill of Rights: Revisiting the Original Understanding of the Fourteenth Amendment in 1866–67, 68 Ohio St. L. J. 1509 (2007); A. Amar, The Bill of Rights: Creation and Reconstruction 163–214 (1998); M. Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986). But nothing in this case turns on that question, and, regardless of the precise vehicle, there can be no serious doubt that the Fourteenth Amendment requires the States to respect the freedom from excessive fines enshrined in the Eighth Amendment.

(Congratulations to my cross-town colleague and law school classmate Bryan Wildenthal (Thomas Jefferson) for the citation to his classic article on originalism and incorporation).

Justice Thomas wrote a long concurrence in the judgment repeating his view (from McDonald v. City of Chicago) that the privileges or immunities clause is the correct basis for incorporation.  From the introduction:

I agree with the Court that the Fourteenth Amendment makes the Eighth Amendment’s prohibition on excessive fines fully applicable to the States. But I cannot agree with the route the Court takes to reach this conclusion. Instead of reading the Fourteenth Amendment’s Due Process Clause to encompass a substantive right that has nothing to do with “process,” I would hold that the right to be free from excessive fines is one of the “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment.

From his attack on substantive due process:

Because this Clause speaks only to “process,” the Court has “long struggled to define” what substantive rights it protects. McDonald, supra, at 810 (opinion of THOMAS, J.). The Court ordinarily says, as it does today, that the Clause protects rights that are “fundamental.” Ante, at 2, 3, 7, 9. Sometimes that means rights that are “‘deeply rooted in this Nation’s history and tradition.’” Ante, at 3, 7 (quoting McDonald, supra, at 767 (majority opinion)). Other times, when that formulation proves too restrictive, the Court defines the universe of “fundamental” rights so broadly as to border on meaningless. See, e.g., Obergefell v. Hodges, 576 U. S. ___, ___–___ (2015) (slip op., at 1–2) (“rights that allow persons, within a lawful realm, to define and express their identity”); Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 851 (1992) (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”). Because the oxymoronic “substantive” “due process” doctrine has no basis in the Constitution, it is unsurprising that the Court has been unable to adhere to any “guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfundamental rights that do not.” McDonald, supra, at 811 (opinion of THOMAS, J.). And because the Court’s substantive due process precedents allow the Court to fashion fundamental rights without any textual constraints, it is equally unsurprising that among these precedents are some of the Court’s most notoriously incorrect decisions. E.g., Roe v. Wade, 410 U. S. 113 (1973); Dred Scott v. Sandford, 19 How. 393, 450 (1857).

And then on privileges or immunities:

When the Fourteenth Amendment was ratified, “the terms ‘privileges’ and ‘immunities’ had an established meaning as synonyms for ‘rights.’” Id., at 813. Those “rights” were the “inalienable rights” of citizens that had been “long recognized,” and “the ratifying public understood the Privileges or Immunities Clause to protect constitutionally enumerated rights” against interference by the States. Id., at 822, 837. Many of these rights had been adopted from English law into colonial charters, then state constitutions and bills of rights, and finally the Constitution. “Consistent with their English heritage, the founding generation generally did not consider many of the rights identified in [the Bill of Rights] as new entitlements, but as inalienable rights of all men, given legal effect by their codification in the Constitution’s text.” Id., at 818.

The question here is whether the Eighth Amendment’s prohibition on excessive fines was considered such a right. The historical record overwhelmingly demonstrates that it was.

The opinion then reviews the historical record in more detail than the majority, but essentially to the same effect.

One point of interest in Justice Thomas' concurrence is that, as the last quote above shows, he does not seem to accept that the privileges or immunities clause automatically incorporates all of the enumerated rights of the Bill of Rights against the states.    Thus he may believe that some Bill of Rights rights are not incorporated and, of greater significance, he may be more open to finding that some rights, not listed in the Bill of Rights but considered fundamental at the time the Fourteenth Amendment was adopted, are applicable to the states.

Ilya Somin has further thoughts at Volokh Conspiracy here.