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18 posts from February 2019


David Upham on Establishment and Incorporation
Michael Ramsey

At Law & Liberty, David Upham (Univ. of Dallas, Politics): The Court Should Tear Down Everson, Not the Maryland Cross (commenting on the Maryland cross case, Maryland-National Capital Park and Planning Commission v. American Humanist Association).  From the introduction:

The challenge to the 94-year-old cross (erected in 1925) rests entirely on a 72-year-old precedent, established in Everson v. Board of Education (1947).  In Everson, the Court held that the Constitution’s Fourteenth Amendment makes both Religion Clauses fully applicable against the states, and therefore, that the federal courts have authority to forbid any state action they deem an establishment of religion.

In the Maryland cross case, the litigants and judges have seemingly all accepted this precedent as settled and fully applicable law.  Despite the conservative leanings of several Justices, the participants in the litigation have thus far shown little interest in the text or original understanding of the Amendment.  Indeed, neither the text nor the very name of the “Fourteenth Amendment” appears anywhere in the Respondents’ 100-page main brief or in the lengthy opinions authored by the Fourth Circuit. Further, with the exception of two amici, no one has addressed whether Everson might be a bad precedent, inconsistent with the original understanding of the Fourteenth Amendment.

Moreover, no one, it seems, has raised the objection that it would be unjust to retroactively apply Everson so as to destroy the work of those who, two decades earlier, could not have foreseen the incorporation of the Establishment Clause.

In this essay, I’d like to establish two facts that seem to me highly relevant to a just resolution of this case.  First, when the Maryland cross was erected, the virtually unanimous legal consensus was that the federal Constitution did not incorporate the Establishment Clause against the states, and that, consequently, the respective states retained the exclusive authority to regulate themselves in matters of religious nonestablishment.  Second, this non-incorporation consensus was plainly harmonious with the original understanding of the Fourteenth Amendment.

Consequently, the citizens who established the cross could not have reasonably foreseen Everson and thus had good reason to rely on Maryland’s permission as final.  A reasonable person would not have predicted that the federal judiciary would later order the destruction of the cross as violative of the Constitution.

Some of the evidence supporting these claims is well known by scholars.  But some of it has not been published before. ...


John Dossett on Originalism and Indian Law
Michael Ramsey

Following up on this post on originalism and Indian law, here is some important recent scholarship in the field by John Dossett (Lewis & Clark): 

Indian Country and the Territory Clause: Washington's Promise at the Framing (68 Am. U. L. Rev. 205 (2018)); abstract:

This article explores the Territory Clause, Article IV, Section 3 as a source of power for federal laws in “Indian country,” as defined at 18 U.S.C §1151. In contrast to plenary power doctrine, the Territory Clause offers a textual source of authority to regulate matters unrelated to commerce, such as criminal jurisdiction in Indian country. Intended to constitutionalize the Northwest Ordinance of 1787, the Territory Clause provides a principled rather than plenary basis for Congressional initiatives in Indian policy; a constitutional source of authority tempered by the duty of “utmost good faith.” This renewed understanding of the Territory Clause makes certain the source of federal authority in Indian country, and provides a stronger interpretive lens for matters of tribal sovereignty, land rights, taxation, and criminal justice.


Tribal Nations and Congress’s Power to Define Offences against the Law of Nations (Montana Law Review, forthcoming); abstract: 

This Article advances the Offences Clause as an additional, and important, source of federal authority in Indian affairs, particularly for the Indian Child Welfare Act (ICWA). The Constitution grants to Congress the power to define and punish "offences against the law of nations," in Art. I, Sec. 8, Cl. 10. Although the Offences Clause does not specifically reference Indian Nations, there is considerable evidence that it was intended for use in regulating the relationships with tribal nations as well as foreign governments. Much like the Treaty Clause and the Territory Clause, the Framers wrote the Offences Clause broadly to include foreign powers and tribal nations within the same scope of federal authority.

The Offenses Clause provides enumerated authority for the regulation of important matters between sovereigns, such as the citizenship and custody of children. In this way, it addresses claims that ICWA exceeds Congressional authority, such as those brought by the State of Texas in current litigation. Instead, the ICWA is an exercise of the well-established authority of Congress to pass laws under its enumerated powers and involves little more than an application of the Supremacy Clause's provision that federal law "shall be the supreme Law of the Land," enforceable in every state.


Eric Segall Asks: Are Court Decisions Law?
Michael Ramsey

At Dorf on Law, Eric Segall: Are Court Decisions Law, and why that Matters to Whether Originalism is Our Law.  From the introduction:

I recently had the great privilege of debating Professors Christopher Green and Stephen Sachs at the University of North Carolina School of Law (we are all friends so I'll call them Chris and Steve). The debate was sponsored by UNC's Federalist Society and American Constitution Society. I learned a lot and enjoyed the back and forth.

The title of the debate, inspired by my book, was "Originalism as Faith or Originalism as Law?" Although we had interesting conversations about that question, the most provocative part of the day occurred when Steve argued that judicial decisions in general, and Supreme Court decisions in particular, aren't law. He said court decisions may bind legal actors, political officials, and the public, but they are not law, as opposed to the Constitution and statutes, which are law.

Similarly, Chris argued that he cares much more about what the Constitution is, and what it says, than what the Court says it means. He repeated his argument made many times in his fine scholarship (and in our Twitter conversations) that the meaning of the Constitution never changes even when judicial applications of constitutional text change.

And in response:

At the debate, I argued that it is quite likely that many of the nations' universities do not have rigid racial quotas only because law schools treat Supreme Court decisions as binding law. That point also responds to Chris' argument that the Constitution means something separate from what the Court says it means. That is emphatically not true for the thousands of political actors and millions of Americans who treat Supreme Court decisions as law they must obey (and much, much more often than not, as is the case with affirmative action, that law is emphatically not the Founders' law).

My tentative view is that court decisions (as to constitutions and statutes) are authoritative statements of what the law is, although they are not law in themselves.  But I'm not sure there are practical implications of taking a different view for most people.  I do think that Congress and the President are entitled to hold different views from the courts of what the law is, so long as they do not act contrary to court orders.  (So for example the President can veto an Act on the ground that it is unconstitutional even if the Supreme Court has said that a law of that type is not unconstitutional).  But I'm not clear on why the distinction matters in other contexts.


Calvin TerBeek on Ed Meese on Incorporation
Michael Ramsey

An interesting find by Calvin TerBeek at House Divided:  The Untold Story of How Conservatives Embraced the Bill of Rights and Incorporation. Here is the introduction:

The new conservative majority of the Supreme Court has begun the second phase of its constitutional rights project of providing increased protection to Second Amendment rights vis-a-vis state gun control laws. Lost in this, however, is the story of how conservatives stopped worrying about the Court applying (“incorporating”) the Bill of Rights against the states. Not only is this story underemphasized, when recounted it has been rendered inaccurately. Contrary to existing accounts by legal scholars and historians, it was neither academic lawyers nor the vanguard of libertarian legal interest attorneys who cleared the path for constitutional conservatives to embrace incorporation.

In short, here’s what happened: instead of continuing to complain that the Warren Court had erred in applying the full force of the Fourteenth Amendment and First Amendment’s religion clauses to the states—an important ideational aspect of judicial and movement conservatism in the 1950 through the 1970s—farsighted entrepreneurial political actors in the 1980s saw that arguments for “disincorporation” hindered movement conservatives’ larger constitutional politics project.

I won't spoil the story, except to say it turns on a missing line in Attorney General Meese's famous 1985 speech to the American Bar Association.

Plus this appearance by the University of San Diego:

In 2009—in the wake of Heller and presumably looking forward to McDonald (2010)—a number of legal scholars, including prominent originalists, held a conference at a hotbed of originalist legal thought: University of San Diego. The conference was meant to flesh out the interaction of the Bill of Rights and the Fourteenth Amendment—that is, incorporation. Indeed, one prominent originalist, apparently unaware that the nature of the relationship between constitutional conservatism and incorporation had long since been determined by political actors in the Reagan DOJ, wrote on the topic at length. Even today, originalists still cite to the incorrect text of Meese’s speech.

My personal memory, for what it's worth, is that when I began to get interested in originalism some years after Meese's speech the "disincorporation" project was not of interest to at least the younger generation of originalist scholars.


Parchment Barriers and the Determinateness of Constitutional Text
Mike Rappaport

Recently, Jonathan Gienapp, a Stanford historian, has published what is likely to be a widely read book on constitutional interpretation. Second Creation: Fixing the Constitution’s Meaning in the Founding Era argues that there was no agreement on how to interpret the Constitution at the time of the Constitution’s enactment and that standard interpretive positions only emerged after a decade of controversy. Gienapp’s book has already been the subject of a symposium at Balkinization.

I am now reading Gienapp’s book and have found much to disagree with. I plan to write more about this after I finish it. John McGinnis and I have already written a response to claims from Jack Balkin that Gienapp’s evidence shows that our interpretive position—Original Methods Originalism—is defective.

Now, Ilan Wurman, a young law professor at Arizona State, has written a very critical review of the book, which sounds many of the right themes. One claim that Gienapp makes is that the Framers’ distrust of parchment barriers showed that they did not believe that the language of the Constitution settled its meaning. Rather, the Framers relied upon the structure of the Constitution. This is a typical example of the type of argument Gienapp makes and why I believe the book is problematic.

One problem with the argument is identified by Wurman, who writes:

True, the framers were concerned about mere “parchment barriers.” They believed a mere declaration of rights or limits on power was insufficient to enforce such rights and limits because words could too easily be ignored by those in power. . . . What really matter[ed to the Framers according to Gienapp] is the Constitution’s structure, the checks and balances and separation of powers that ensure, as Madison writes, that “ambition [is] made to counteract ambition.” But what creates this structure—this separation of powers? The words of the Constitution. If words were so imprecise and meaningless, and the Constitution were not confined to its words, then the separation of powers itself would be meaningless.

But there is another problem with Gienapp’s argument. One can believe that parchment barriers—the words of the Constitution—are not sufficient to protect against unconstitutional actions while also believing that the Constitution had a determinate meaning at the time of its enactment. In fact, this is a very common understanding and is one popular justification for judicial review—without judicial review, Congress and the states would ignore the Constitution’s meaning. Consequently, one might believe that it is important to establish a constitutional structure in order to ensure that the Constitution’s determinate meaning be followed. This is the conventional understanding of what underlay the Founders’ remarks about parchment barriers and I believe that understanding is correct.


Allen Mendenhall on a New Book on Justice Scalia
Michael Ramsey

At Law & Liberty, Allen Mendenhall (Faulkner): A (Mostly) Misbegotten Attempt to Take Scalia’s Measure (reviewing The Conservative Revolution of Antonin Scalia (David A. Schultz & Howard Schweber, eds., Lexington 2018))).  From the discussion:

No consensus view emerges from these wide-ranging essays on everything from Scalia’s contributions to administrative law to his Senate confirmation hearings. Nor are the essays  universally admiring. On the contrary, most of them are critical. “Was Antonin Scalia a sissy when it came to administrative law?” Schultz asks—unprofessionally, in my view. Mary Welek Atwell of Radford University scrutinizes Scalia’s opinions in cases about race and gender, highlighting his apparent “comfort” with the “patriarchal, hierarchical” elements of the Roman Catholic Church, and grandly declaring that Scalia “sympathized more with those who were trying to hold on to their privilege by excluding others than with those who sought to be included.”

Is that so? And is it so that Scalia, in the words of contributor Henry L. Chambers, Jr., of the University of Richmond School of Law, “read statutory text relatively simply”? What a relatively simple claim! Scalia’s Reading Law (2012), coauthored with Bryan Garner, outlines principles or canons for interpreting statutes and legal instruments; it has become a landmark in the field, having been cited in hundreds of cases and over a thousand law review articles in the seven years since its release. While it aims to simplify hermeneutics, providing sound methodological guidance to interpreters of legal texts, it is by no measure simple.


Most of the critiques in this book, in contrast to those just cited, are responsibly researched and tonally reserved. No reasonable person expects scholarly assessments of a controversial jurist’s legacy to be an exercise in hagiography. On the other hand, such assessments should avoid coming off like intemperate outbursts.

The 18 contributors come from a range of disciplines. Only three are law professors; two are professors of criminal justice; two are doctoral candidates; and one clerks for a federal judge. Equally diverse are the essays’ methodological approaches. The most distinctive belongs to Timothy R. Johnson, Ryan C. Black, and Ryan J. Owens, who in a coauthored chapter attempt to examine empirically—with graphs and figures—Scalia’s influence on the behavior of his Court colleagues during oral argument. Whether they succeed is a determination better left to experts in quantitative research.

And here is the book description from Amazon:

Many hoped or feared that Antonin Scalia’s appointment to the Supreme Court in 1986 would guarantee a conservative counter-revolution that would reverse the liberal jurisprudence of the Supreme Court under Chief Justice Earl Warren and which was continued to some extent under the Burger Court though the influence of Justice William Brennan. In addition, President Reagan described Scalia’s nomination as part of a project to remake the role of the Court, promote an interpretive approach of originalism, and shift authority and discretion to the States. Yet by the time of his death in 2016 it was unclear to what extent Scalia had effected the legal, institutional, or political revolutions that had been anticipated. While the Court did move to the right doctrinally, and reversed or modified many Vinson-Warren-Burger precedents, Scalia’s influence on constitutional jurisprudence turned out to be far less than it could have been, and his ability to persuade other Justices to adopt his legal views—both substantively and methodologically—was less than many mainstream media accounts recognize. Scalia’s institutional and political legacies are similarly complex: he was neither as transformative a figure as some of his allies might have hoped nor so unimportant as some of his detractors might have wished. The fact that his death and the controversy surrounding his replacement is so intense speaks to the fragile legacy that Scalia really has had on the Supreme Court after 30 years. This book will assess Scalia’s legacy in an edited volume that assembles leading legal and political science scholars who will evaluate his impact across a range of jurisprudential, institutional, and political issues.

But, $102.40 a copy!  And I thought I got a bad deal on my book pricing.

Why Supreme Court Judging Is Not Necessarily Partisan
Mike Rappaport

I recently came upon this review of Richard Brookhiser’s new biography of Chief Justice John Marshall by Yale Professor John Fabian Witt. The review criticizes Brookhiser’s take on Marshall as a justice who furthered the law and originalism rather than politics. Instead, Witt believes that Marshall’s judicial career was defined by the goal of advancing his party’s political agenda. For Witt, Brookhiser is engaged in a type of myth-making that is harmful to our understanding of the law and of what we can expect from courts.

I will explore this point in a second, but it is worth point out that Witt is writing this review with an eye towards present day politics. He concludes the review:

Marshall’s ability to carry out the Federalist agenda for a generation after the party’s decisive defeat at the polls stands as a warning for what we may expect to see in our own time. Accounts of his life that downplay his politics make it harder to grasp this key point. . . . The truth is that law is not independent of party. It never has been. Law is not reducible to party, either. But now more than ever we need a realistic account of how our courts work, one that can recognize the law’s long-standing and durable interconnections with the world of the partisan operative.

Clearly, Witt’s point is that the Republicans may keep a majority on the Supreme Court that will decide cases based on what that majority claim is original meaning or law, even though the country may have rejected President Trump and the congressional Republicans at the polls. We should not, Witt implies, accept such apolitical claims. Those Republican Justices will be promoting their party’s political agenda.

After a generation of being lectured to by historians about how originalist law professors are presentist, but historians are not, such presentism seems ironic coming from a historian.

Now, back to Witt’s claim that Marshall—and all justices—are involved in party politics. If what is meant is simply that the justices are people and have different ideas about what the law is, and those ideas are often in accord with the political parties to which they belong, then this is clearly true. Marshall’s ideas on the law are not surprising given that he was a moderate Federalist, just as Scalia’s ideas about the law are not surprising given that he was a conservative Republican.

But I think Witt means more than this. He seems to be suggesting that ideas on law cannot be unrelated to party, in part because the original meaning cannot be determined. And here I would beg to differ. One can attempt to determine the original meaning, even if there was not a consensus at the time of its enactment. In that situation, one follows the interpretation that has the greater support for it. And if one is genuinely seeking the original meaning, then that is not party politics, but law.

Imagine for a minute that there were two political parties—one devoted to originalism and one not. (While Republicans seem more devoted to originalism, I am not suggesting that this contrast is one between Republicans and Democrats.) In that situation, the originalist party would be a political party, but it would also—in my view, at least—represent law and not politics. By dismissing originalists as simply about politics, one ignores an essential distinction—that the nonoriginalist considers his own values, while the originalist considers the values placed into the Constitution.

How does Marshall stack up in terms of originalism? While some scholars have emphasized strategic parts of Marshall’s opinions (such as the order of issues considered in Marbury), I have generally found his opinions to be almost always defensible in terms of originalism.

This is not to say that Marshall always reached what I would regard as the original meaning. But I do not find any of his opinions to be clear departures from the original meaning, as I do many opinions from various other courts, such as the New Deal, the Warren, and the Burger Courts. And some of his opinions are masterpieces of originalist reasoning, such as portions of Marbury.

For these reasons, I regard him as the Great Chief Justice.

Larry Solum's Legal Theory Lexicon on the Construction Zone
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory lexicon has this new entry: The Construction Zone.  From the introduction:

The idea of a "construction zone" is based on the interpretation-construction distinction.  The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:

Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett.


Construction zones arise because the meaning of some legal texts underdetermines the legal effect that is given by courts and other officials to the text.  For example, the communicative content of the phrase "freedom of speech" underdetermines the legal content of free-speech doctrine.  The linguistic meaning of the phrase "freedom of speech" does not contain doctrines such as the distinction between content-based and content-neutral restrictions on speech.  These legal content of these implementation rules is underdetermined by the communicative content of the First Amendment.

And from further on:

Identification of the construction zone is only the start of the analysis of what to do when a legal text is underdeterminate with respect to some case or issue.  The next step is to determine what methods of construction are appropriate for the determination of legal effect.  This step involves theories of construction: such theories provides methods for choosing implementation rules.

There are many possibilities.  For example, we might devise implementation rules by identifying the objective purpose or function of a statute or constitutional provision.  Or we might use a default rule: for example, in constitutional cases, courts could defer to democratic officials when the constitutional text is underdeterminate.  Precedent or historical practice might play a role in the construction zone.

The law is full of doctrinal techniques for resolving cases in the construction zone.  For example, application of a vague or open-textured statute or constitutional provision might be guided by a balancing test.  Or the courts might precisify a vague provisions by devising a bright-line rule that implements that purpose of the provision.  Another possibility is to grant discretion to trial court judges to resolve cases in the construction zone.


The Constitution and Wealth Taxes
Michael Ramsey

At Dorf on Law, Neil Buchanan: What Kind of Constitutional Mess Might a Wealth Tax Create?, and also at Justia: Can We Tax Wealth? Yes, and Even if Not, Still Yes.  From the latter:

Direct and Indirect Taxes

Where are the strictly legal issues hiding? The Constitution distinguishes between two types of taxes, direct and indirect. What is the difference? As I noted above, no one seems to be sure. True, the occasional conservative blogger might claim to have the key to understanding the difference, but even then we see a concession that, “[a]dmittedly, the line between direct and indirect taxes was not always crystalline.” That understatement deserves some kind of award.

The Constitution’s text is unhelpful, because section 9 of Article I says only that “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” So we know that a capitation—that is, a per-person tax—is one kind of direct tax, but we honestly have only the most limited clues as to what else would count as a direct tax. Clearly, the framers thought that there must be others, but they did not provide guidance.


What About Apportionment?


The key here is that the Court cannot invalidate a wealth tax. It can only say that a wealth tax is a direct tax, not an indirect tax, and thus that it must be apportioned. But again, so what? What is apportionment, and why does it matter?

Apportionment means that the tax must be levied in proportion to each state’s representation in the House of Representative. Because House seats are set roughly in proportion to population, this means that a direct tax must be levied such that the ratio of the money collected from each state to the total revenue collected by the tax is equal to the ratio of each state’s population to the total population of the country. Maryland’s population, for example, is currently just under two percent of the total population, so an apportioned tax would have to collect that percentage of its revenue from Marylanders... [and as he goes on to explain, this would create various perverse outcomes.]

Via the link above, here's a 2015 essay by Rob Natelson that addresses the direct/indirect question: The Constitution’s financial terms, part III: Direct and indirect taxes.  Here's his summary (after extensive originalist analysis):

Admittedly, the line between direct and indirect taxes was not always crystalline. One might argue that a particular Massachusetts “excise” levied on cider mill production was really a direct tax rather than an excise. As in Hylton v. United States, one might quarrel over whether an annually-imposed levy on consumer-owned carriages was direct or indirect. Nevertheless, contemporaneous tax statutes, public discussion, newspapers, treatises, and governmental publications render rather clear the fundamental difference between the categories: A tax was direct if laid on one’s status or on one’s living or livelihood — that is, if it was levied on heads, on the ordinary effects of daily life, or on production. Taxes on wealth, property, businesses, and income were all direct. Taxes were indirect (and w[ere] therefore duties) if imposed on the consumption or on certain specific transactions, such as importing, exporting, and issuing legal documents.

I expect we will be hearing more on these issues in the near future.


Jeremy Telman: Five Meta-Interpretive IssuesMichael Ramsey

D.A. Jeremy Telman (Valparaiso University Law School) has posted All That Is Liquidated Melts into Air: Five Meta-Interpretive Issues (Barry Law Review, forthcoming) (26 pages) on SSRN.  Here is the abstract: 

The promise of originalism is that it helps us to fix constitutional meaning and constrain constitutional decision-makers. There are significant constitutional questions that originalism can help resolve, at least to the extent that constitutional decision-makers buy in to originalism. However, even assuming that originalism is normatively desirable, there are certain issues that are fundamental to constitutional decision-making but that originalism cannot help us resolve. The Framers were hopelessly divided on them, and they may not be susceptible to Madisonian “liquidation.” That is, at least some of these issues still generate live controversies even though some of them seem to have been resolved by adjudication, legislation or long-standing practice.

This paper identifies five such issues, which seem the most fundamental. These issues are “meta-interpretive” because they are subjects of interpretation while also providing the framework for resolving other interpretive issues. That is, they establish the parameters within which constitutional decision-makers can resolve particular interpretive issues. Those who follow debates about and within originalist theory are familiar with the notion that original meaning sometimes runs out. At that point, even originalists concede, constitutional decision-makers resort to modalities of constitutional interpretation other than originalism. My unique claim here is that original meaning runs out very early in the process and that originalist interpretation therefore takes place within a non-originalist meta-interpretive frame.