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37 posts from March 2019


John Mikhail: James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws'
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted James Wilson, Early American Land Companies, and the Original Meaning of 'Ex Post Facto Laws' (Georgetown Journal of Law & Public Policy, Vol. 17, No. 1, 2019) (66 pages) on SSRN.  Here is the abstract:

Many commentators have questioned whether the interpretation of the term “ex post facto laws” in Calder v. Bull, which restricted that term to retroactive criminal laws, is historically accurate. Most prominently, over seventy years ago Professor William Winslow Crosskey argued not only that this “criminal-only” reading of “ex post facto laws” departed from the original understanding, but also that Justices Chase, Iredell, and Paterson adopted that erroneous interpretation in order to assist James Wilson, who by 1798 had fled from his creditors and needed retroactive bankruptcy protection. Drawing on new evidence related to legal disputes involving three land companies with which Wilson was associated, which eventually gave rise to Hollingsworth v. Virginia, Fletcher v. Peck, and Johnson v. M’Intosh, this Article contends that Crosskey was likely correct about the original meaning of “ex post facto laws,” but likely mistaken about the Justices’ motivations in Calder. In fact, Wilson’s land speculation, conflicts of interest, and aggressive pursuit of his companies’ interests were probably a source of embarrassment to his fellow Justices. Nonetheless, there is a clear discrepancy between the construal of “ex post facto laws” in Calder and how that term was widely used in the founding era, which merits further investigation. A better historical understanding of these land disputes also raises new doubts about the reliability of the discussion of ex post facto laws in James Madison’s Notes of the Debates in the Federal Convention. 


Mark Pulliam’s Defense of Slaughterhouse: A Response
Mike Rappaport

After Mark Pulliam responded to my post, I replied with the post below

Mark Pulliam has graciously responded to my post on the Slaughterhouse Cases. As readers will remember, Pulliam argued that the Slaughterhouse Cases should continue to be followed out of fear of the mischief that would be produced by overruling it. I argued that the originalism requires us to follow the original meaning even if we are concerned about the consequences of following it for certain provisions.

I want to pursue this debate a bit longer. The point of debates is to clarify disagreement and move the parties closer. Hopefully, we can achieve one or both of these objectives.

Pulliam defends the Slaughterhouse Cases on a number of grounds. But I find it hard to sympathize. To me, the strongest argument for his position is the following. If one is seeking to overturn a precedent as inconsistent with the original meaning, then one ought to have some good notion of the original meaning of the relevant provision. If we do not, then we should not overturn the case.

While the strongest argument for his position, this argument is not inevitable. After all, there are various alternatives to Slaughterhouse: Kurt Lash’s view that the Privileges or Immunities Clause mainly incorporates the Bill of Rights, John Harrison’s view that the Clause prohibits arbitrary discrimination, Randy Barnett’s view that the Clause protects natural and other individual rights, and Chris Green’s view that the Clause protects individual common law rights that largely prevail throughout the country (with which I agree). I believe each of these views is superior to Slaughterhouse. So it is a bit strange to keep Slaughterhouse on the ground that no one of the competitors is accepted by everyone, even though all of these competitors are superior to Slaughterhouse. In other words, it would be odd to keep Slaughterhouse even though it is the worst interpretation of all of the theories.

The interesting thing here is that not all of these contending views would be uncongenial to Pulliam. Harrison’s view would allow him to avoid both incorporation of the Bill of Rights and protection of unenumerated common law rights. Lash’s view would allow him to mainly avoid unenumerated rights, although it would require him to accept incorporation. If I were Pulliam, I would adopt one of these views (if I became sincerely convinced it was correct).

But doing so would require that Pulliam read the recent literature on these issues and make an informed decision. That may not be how he wants to spend his time, although I would note that this literature is quite interesting. But if Pulliam does not read the literature, I think it becomes much more difficult for him to reject these positions as hopelessly conflicted. If he read it, he might conclude that one of the approaches—perhaps Harrison’s, which might be most congenial to him—is correct.

In the end, his position would be more convincing if he adopted one of these theories. He could defend the courts not protecting unenumerated rights based on a supported interpretation of the Constitution rather than based on a case regarded as wrong by virtually everyone. It is true that Robert Bork argued that the Amendment could not be understood, but we have come a long way since Bork looked at these matters. Pulliam could benefit from this scholarship.

Jeffrey Pojanowski: Neoclassical Administrative Law
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) has posted Neoclassical Administrative Law (Harvard Law Review, Vol. 133, 2019, forthcoming) (54 Pages) on SSRN.  Here is the abstract:

This article introduces an approach to administrative law that reconciles a more formalist, classical understanding of law and its supremacy with the contemporary administrative state. Courts adopting this approach, which I call “neoclassical administrative law,” are skeptical of judicial deference on questions of law, inclined to give more leeway to agencies on questions of policy, and attend more closely to statutes governing administrative procedure than contemporary doctrine. This theory is “classical” in its defense of the autonomy of law and legal reasoning, separation of powers, and the supremacy of law. These commitments distinguish it from theorists who would have courts make a substantial retreat in administrative law. It is “new” in that, unlike other more classical critics of contemporary administrative law, it seeks to integrate those more formal commitments with the administrative state we have today—and will have for the foreseeable future.


Mark Pulliam and the Old Originalism
Mike Rappaport

I have been a little late in publishing some posts on Privileges or Immunities, so Mike Ramsey has reported on some responses to my posts (on the Liberty Law Blog) before I even published the posts here.   Today and tomorrow I will be publishing two posts that were early parts of the conversation.  Below is the post where I criticized Mark Pulliam for being an old originalist.  Mark responded here.  

Mark Pulliam, who is a frequent contributor to the Liberty Law site, has written a new essay at American Greatness, entitled “The Pernicious Notion of ‘Unenumerated Rights,’” that attacks judicial activism from an originalist perspective. Mark sets his sights on various deserving targets and I agree with many of his criticisms.

Here is a taste of the essay:

Many Americans properly scoff at the idea that there are constitutional rights to things that are not actually set forth in the Constitution, such as the “right to a climate system capable of sustaining human life,” as Judge Ann Aiken, appointed by President Bill Clinton, ruled in Juliana. But once judges free themselves of the constraints of constitutional text, anything is possible.

But despite my agreement with some of the essay, I do take exception with the overall theory underlying it. Pulliam writes as an originalist and criticizes others as faux originalists. While I agree that we should be originalists and that some people are faux originalists, I don’t agree with Pulliam’s understanding of the idea. In fact, some people might regard Pulliam’s originalism as the false one.

One problem with Pulliam’s notion is that he builds constraint into originalism. While there are many versions of new originalism these days, Pulliam’s is a clear example of the old originalism. The old originalism rejects interpretations of the Constitution that it regards as conferring too much discretion on judges. But this is problematic and not real originalism.

The old originalism says: generally interpret the Constitution in accord with its original meaning, but do not follow the original meaning when it would confer excessive discretion on judges—that is, discretion that might allow “nonoriginalist” or “willful” judges to import their values into the Constitution. We can all understand why an originalist would be suspicious of such excessive discretion, especially in a world where such importation regularly occurs.

But that suspicion of excessive discretion, however reasonable, cannot justify an originalist ignoring the original meaning. That suspicion is a moral principle. If a “non-excessive-discretion principle” is not in the Constitution, then judges have no more right to follow it than they do to follow moral rights that are also not in the Constitution.

Let me take an example. The Slaughterhouse Cases misinterpreted the Privileges or Immunities Clause of the Fourteenth Amendment. Virtually every legal scholar, no matter of what viewpoint, believes the majority opinion in this case was mistaken. But Pulliam writes that the justices should not overturn the case because it would give willful judges the opportunity to make up rights.

That is not originalism. The Slaughterhouse Cases also raise another issue relevant to Pulliam’s essay. He talks of “enumerated” and “unenumerated” rights. That is an important distinction, but we should not ignore that the key distinction for originalism is something else—between rights that are protected by the Constitution and those that are not. The Constitution can protect rights without those rights being enumerated.

For example, the Constitution says “No State shall . . . abridge the privileges or immunities of citizens of the United States.” But the Constitution does not enumerate what those privileges or immunities are. Some of them may be enumerated by the Bill of Rights (and thus allow incorporation which Pulliam decries), but I believe that the privileges and immunities of citizens extended far beyond the Bill. Judges should protect those rights, even though they are not enumerated, because they are expressly protected by the Constitution.

If one wants to treat Privileges or Immunities Clause as an inkblot, one can certainly do it. The Supreme Court has largely done that for 150 years. But that ain’t originalism.

Devin Watkins Responds to Kurt Lash on Privileges or Immunities
Michael Ramsey

At Law and Liberty, Devin Watkins:  The Unenumerated Rights of the Privileges or Immunities Clause.  From the introduction:

Does the Fourteenth Amendment’s Privileges or Immunities Clause include unenumerated rights, like the right to earn an honest living or make contracts? Professor Kurt Lash argued in a recent article that it does not. But that seems to be contradicted by the textual and historical foundation of the clause.

To understand the meaning of the Privileges or Immunities Clause in the Fourteenth Amendment, requires understanding the meaning of Article IV’s Privileges and Immunities Clause, which came first. We must start with the definition of each word according to the dictionaries of the era.[1] According to the relevant definitions in those dictionaries:

privilege” meant some particular advantage or right not universal

“immunity” meant freedom (in a more universal sense).

In other words, a “privilege” refers to the positive rights granted by government to some individuals, while an “immunity” referred to the general or universal rights of freedom for individuals. Together, they meant all rights. This has been demonstrated in many other contemporaneous contexts by Eric Claeys.[2]

While Article IV’s Privileges and Immunities Clause is stated in the affirmative (of what citizens are entitled to) and the Fourteenth Amendment’s Privileges or Immunities Clause is stated in the negative (of what cannot be taken away), what’s significant is that other parts of the text are different.

The Privileges or Immunities Clause speaks of the right of “Citizens of each State” being entitled to the rights “in the several States.” The citizen of one state cannot be denied by another state the same rights that state recognizes for its own citizens.

Meanwhile, the Privileges or Immunities Clause protects the rights “of citizens of the United States.” A state cannot refuse to recognize the rights recognized by the federal government. If there is a right against the federal government’s power, that same protection is applied against the state’s power. . . .


Will Foster on Eric Segall on First Amendment Originalism
Michael Ramsey

Will Foster comments: 
I noticed you commented on Eric Segall's positive review of Jud Campbell's natural rights work on your blog. Admittedly, I have not yet had time to do more than skim Prof. Campbell's work, but I am already very skeptical of his conclusions (largely for the reasons you mention), thoroughly-supported though they may be. 
One historical document that I think supports your skepticism: James Madison's speech introducing the Bill of Rights (I am not sure if Prof. Campbell mentions it in his articles). Due to length I added some ellipses but I believe this excerpt accurately represents the full quote; emphasis is mine:

The first of these amendments, relates to what may be called a bill of rights ... I acknowledge the ingenuity of those arguments which were drawn against the constitution, by a comparison with the policy of Great-Britain, in establishing a declaration of rights; but there is too great a difference in the case to warrant the comparison: therefore the arguments drawn from that source, were in a great measure inapplicable. In the declaration of rights which that country has established, the truth is, they have gone no farther, than to raise a barrier against the power of the crown; the power of the legislature is left altogether indefinite ... 

But altho' the case may be widely different, and it may not be thought necessary to provide limits for the legislative power in that country, yet a different opinion prevails in the United States. The people of many states, have thought it necessary to raise barriers against power in all forms and departments of government, and I am inclined to believe, if once bills of rights are established in all the states as well as the federal constitution, we shall find that altho' some of them are rather unimportant, yet, upon the whole, they will have a salutary tendency.

In our government it is, perhaps, less necessary to guard against the abuse in the executive department than any other; because it is not the stronger branch of the system, but the weaker: It therefore must be levelled against the legislative, for it is the most powerful, and most likely to be abused, because it is under the least controul; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. But I confess that I do conceive, that in a government modified like this of the United States, the great danger lies rather in the abuse of the community than in the legislative body. The prescriptions in favor of liberty, ought to be levelled against that quarter where the greatest danger lies, namely, that which possesses the highest prerogative of power: But this [is] not found in either the executive or legislative departments of government, but in the body of the people, operating by the majority against the minority.

Given all this discussion of protecting the minority from the majority, preventing the people from legislative abuses of power, etc., I find it very hard to believe Campbell's claim that the protection of natural rights was thought to lie entirely or almost entirely with the legislature -- the very body Madison was afraid of. Of course, Madison was not the only person who spoke on this topic in the Founding era. Maybe his views were idiosyncratic (although I somewhat doubt it). Unlike Prof. Campbell, I haven't done very much research on the topic.


Mark Pulliam Responds to Originalist Critics
Michael Ramsey

Originalist commentator Mark Pulliam has been drawing some originalist criticisms.  Here are his responses: 

At Misrule of Law, Making Constitutional Law Great Again (responding to Edward Ehler, Don’t Read the Constitution the Way Robert Bork Did).  From the introduction:

Claremont-trained political philosophers represent some of the strongest voices in conservative intellectual circles, but many of them share a flawed view of the Constitution, expressed vigorously—and sometimes splenetically—by the late Harry V. Jaffa.  Edward Erler’s recent essay, “Don’t Read the Constitution the Way Robert Bork Did,” channels both Jaffa’s truculent spirit and the doctrinaire position of West Coast Straussians, complete with familiar—albeit irrelevant–references to Abraham Lincoln and the Declaration of Independence. Unfortunately, Erler’s essay illustrates why the Left’s conception of constitutional law is ascendant while conservatives continue to dither: Unlike progressives, discordant conservatives have been largely ineffective in articulating—let alone advancing—a coherent vision of constitutional law. 

As I explained at greater length elsewhere (here and here), conservatives are all over the map when it comes to constitutional interpretation, and spend as much time in internecine feuds as they do in battle with liberal activists. Jaffa notoriously picked fights with respected conservative legal figures such as Robert Bork and Antonin Scalia, and espoused fanciful theories that have never been embraced by mainstream originalists (and almost certainly will never be adopted by a majority of Supreme Court justices).

And at Law and Liberty: The Many Flavors of “Originalism” (responding to Mike Rappaport, Mark Pulliam and the Old Originalism).  From the introduction:

Commenting on a piece I wrote for American Greatness, my colleague Mike Rappaport agrees with me in certain respects but chides me for being a proponent of “the old originalism,” which he regards as “false,” “problematic,” and “not real originalism.” Rappaport considers himself a “new originalist,” which means that he would follow the original meaning of the Constitution wherever it takes him, even if doing so would create more opportunities for “willful” (or non-originalist) judges to make up rights (as they often do). I accept Rappaport’s criticism in the spirit in which was given, and concede that my piece cited the “privileges or immunities” clause of the 14th Amendment, moribund since the Slaughter-House Cases (1873), as a provision that the Supreme Court should not resuscitate, as many legal scholars now advocate, in part because of the jurisprudential mischief it would likely inspire.

Does that make me a “faux” originalist? I confess to favor leaving a 150-year old precedent in place, despite considerable sentiment that it was wrongly decided—although critics differ greatly in their reasoning—but contend that my position is consistent with “real” originalism. My explanation follows a brief digression on the current state of originalism.

And in conclusion:

Accordingly, my position that the Slaughter-House Cases should be left alone is based on a combination of reasons: I agree with Bork, et al. that the majority was correct, or at least that the meaning of “privileges or immunities” is unclear enough to warrant a restrained interpretation; I strongly disagree with the notion of unenumerated rights (not because it will lead to mischief, but because it is mischief); and, at this point, the precedent is so old and well-established (even if not universally accepted) that, pursuant to stare decisis, it would undermine public confidence in the Court to overrule it. If that disqualifies me as a “new originalist,” so be it.

The original goal of originalism, it must be remembered, was to restore constitutional law to the task of interpreting the Constitution. As Bork famously remarked in 1982, “The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else.” Hewing to the constitutional text necessarily grounds—or “constrains”—judges, which is the whole point of having a written constitution. It is a fallacy to assume that “constraint” is incompatible with originalism.


Kurt Lash: The Enumerated Rights Reading of the Privileges or Immunities Clause
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted The Enumerated Rights Reading of the Privileges or Immunities Clause: A Response to Randy E. Barnett and Evan D. Bernick's 'The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment' (106 Pages).  Here is the abstract:

In prior scholarship, I have argued that the historical evidence suggests that the public originally understood the Privileges or Immunities Clause as protecting enumerated constitutional rights, including (though not limited to) those rights listed in the first eight amendments, but not as protecting absolute enumerated rights such as the unenumerated right to contract protected in cases like Lochner v. New York. In a recent article, Randy Barnett and Evan Bernick canvass more than two decades of my historical work on the Fourteenth Amendment and claim that I have failed to present a persuasive argument in favor of what they call the “Enumerated Rights Only” reading of the Privileges or Immunities Clause. In particular, they argue that (1) antebellum evidence suggests that the term “privileges and immunities of citizens of the United States” was understood to include unenumerated rights, (2) the man who drafted the Privileges or Immunities Clause, John Bingham, described the clause as protecting unenumerated absolute rights, (3) the debates of the Thirty-Ninth Congress suggest that most members would have understood the Privileges or Immunities Clause as transforming the relative rights of Article IV, Section 2 (the Comity Clause) into absolute unenumerated rights, (4) Reconstruction-era references to the “Bill of Rights” as representing the rights of national citizenship are unreliable due to that fact that there was no fixed meaning to the term at that time and (5) because my account fails to explain how the Privileges or Immunities Clause authorized the 1866 Civil Rights Act, it cannot stand as a persuasive reading of the Clause. 

In this article, I respond to all of these arguments and synthesize the evidence I have gathered over the years which I believe supports the Enumerated Rights reading of the Privileges or Immunities Clause. In brief: The only antebellum voices describing the rights of national citizenship as including unenumerated absolute rights were proponents of slavery who insisted they had an unenumerated “right” to own slaves. The abolitionist voices most likely to influence Reconstruction Republicans uniformly described the rights of national citizenship as enumerated constitutional rights. The most significant of these Republicans, John Bingham, always described the privileges or immunities of citizens of the United States as involving constitutionally enumerated rights, and never as unenumerated absolute rights. Bingham’s colleagues in the Thirty-Ninth Congress were well-informed about, and shared a consensus view of, Article IV, Section 2 and cases like Corfield v. Coryell as protecting nothing more than the relative rights of equal treatment in regard to a limited set of “fundamental” rights. Thus, when Jacob Howard named Corfield and the enumerated rights of Article IV as “privileges or immunities of citizens of the United States,” he and his audience understood the limited relative nature of those rights. On the other hand, when members like Bingham and Howard referred to the federal Bill of Rights as privileges and immunities of citizens of the United States, listeners in and outside of Congress would have understood this to be a reference to enumerated constitutional rights. In particular, this is how the public would have understood Bingham’s insistence that he sought to enforce the Bill of Rights against the states and nothing more. Finally, there is no need to force a reading onto the Privileges or Immunities Clause that authorizes the Civil Rights Act. As John Bingham explained, the Civil Rights Act represented an effort to enforce the equal right not to be deprived of life, liberty or property without due process of law—rights covered by the final two clauses of Section One.

(See also my post from yesterday and Professor Lash's recent post at Law and Liberty.)


Apodaca, Ramos, Incorporation and Kurt Lash
Michael Ramsey

At Josh Blackman's suggestion, I took a closer look at Apodaca v. Oregon, the 1972 Supreme Court case that found the unanimous jury requirement not to apply to the states, even though the Court had previously found the Sixth Amendment to apply such a rule to the federal government.  (As noted here, the Supreme Court recently agreed to revisit Apodaca in Ramos v. Louisiana).  Professor Blackman also observed that all of the Justices in Apodaca found the unanimous jury requirement to be deeply rooted in U.S. and English history but five of them still managed to find it inapplicable to the states.

So I took a closer look and on further review, I agree: wow, what an embarrassment.  Justice White's plurality (for himself, Burger, Blackman and Rehnquist) acknowledges that the unanimous jury is a long-standing tradition, but in an expressly non-originalist move finds that "Our inquiry must focus upon the function served by the jury in contemporary society."  From that starting point, the plurality concludes that the protected "interest of the defendant [is] in having the judgment of his peers interposed between himself and the officers of the State who prosecute and judge him" and declares (with essentially no analysis) that this interest "is equally well served" by a non-unanimous jury.  (It seems painfully obvious to me -- even granting that the defendant's interest is properly identified -- that the judgment of the defendant's peers is much more effectively interposed with a unanimity requirement than without one.  But in any event, if the Constitution adopted unanimity as part of its jury requirement, it shouldn't be for Justice White to second-guess that decision, at least not without very powerful reasons.)

Justice Powell's concurrence, providing the fifth vote, at least has a structural argument behind it -- that the Court should not micromanage state criminal procedure but instead let states experiment with different approaches.  That's fine, as long as the Constitution doesn't say otherwise.  But if one accepts incorporation, the point of that aspect of the Fourteenth Amendment was exactly to preempt some state approaches and ensure a national minimum of rights corresponding to the rights held against the federal government.

And Justice Douglas, of all people, wrote a devastatingly formalist dissent.  I predict Apodaca gets overruled 9-0.

From an originalist academic perspective, the bigger question is whether incorporation has adequate originalist foundations.  On this point Kurt Lash (Richmond) has a post at Law and Liberty (thanks to Mark Pulliam for the pointer) and a new article on SSRN.  From the post:

... Although the Supreme Court has been wrong to enforce [the incorporation] doctrine under the Due Process Clause, it would be entirely right to do so under the Privileges or Immunities Clause. Further, doing so would not require reversing Slaughterhouse or open the door to judicial construction of unenumerated rights.

The man who drafted the Privileges or Immunities Clause, John Bingham, could not have been clearer about his desire to enforce the Bill of Rights against the States. On February 28, 1866, when John Bingham submitted his first draft of the Privileges or Immunities Clause, he declared, “[t]he proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution to-day. It “hath that extent—no more.” On March 9th, Bingham again declared that “the enforcement of the bill of rights [against the states] is the want of the Republic.” On May 10, following the submission of Bingham’s final draft, once again Bingham declared “There was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply.” The Privileges or Immunities Clause would finally allow congress to enforce provisions like the eighth amendment’s protection against cruel and unusual punishments. Once again, Bingham assured his colleagues, “That is the extent that it hath, no more.”  Finally, in 1871, Bingham explained:

Jefferson well said of the first eight articles of amendments to the Constitution of the United States, they constitute the American Bill of Rights.  . . . They secured  . . . all the rights dear to the American citizen. And yet it was decided, and rightfully, that these amendments, defining and protecting the rights of men and citizens, were only limitations on the power of Congress, not on the power of the States. . . .

Mr. Speaker, this House may safely follow the example of the makers of the Constitution and the builders of the Republic, by passing laws for enforcing all the privileges and immunities of citizens of the United States, as guarantied by the amended Constitution and expressly enumerated in the Constitution.

I will link to Professor Lash's article separately, as it deserves a separate post.  The key point, though, is that full incorporation, or something close to it, has solid originalist foundations.  I think the modern center-right Justices -- unlike the center-right Justices of the Apodaca era -- are influenced by this view, as well as by the formalist sense that the Court should not be picking on policy grounds which Bill of Rights rights are incorporated and which aren't.  So again, I think Apodaca's days are numbered.  And originalists should be happy.

UPDATE:  Will Baude comments at Volokh Conspiracy: Unanimous Juries and Incorporation of the Bill of Rights.  

I assume that it is not a coincidence that the cert grant [in Ramos] happened shortly after the Court's decision in Timbs v. Indiana to unanimously incorporate the Excessive Fines Clause against the states. At oral argument in Timbs, Justice Gorsuch seemed to suggest that complete incorporation of the bill of rights was at this point a foregone conclusion. But in the decision in Timbs it became clear that the Justices may not have complete agreement on a theory of incorporation, with the majority extending the Court's current substantive due process precedents, while Thomas takes the more historically accurate path of applying the Privileges or Immunities Clause. As Justice Gorsuch noted in a concurring opinion, in Timbs, nothing turned on the Court's theory of incorporation. And that is probably true in Ramos too. But at some point, it might. ...


Anita Krishnakumar: Backdoor Purposivism
Michael Ramsey

Anita S. Krishnakumar (St. John's University - School of Law) has posted Backdoor Purposivism (forthcoming, Duke Law Journal, Vol. 69, 2020) (67 pages) on SSRN.  Here is the abstract: 

It has become standard, among statutory interpretation commentators, to declare that “We are all textualists now.” The comment stems from the observation that in the modern, post-Scalia era, all of the Justices on the U.S. Supreme Court—including those considered purposivists—pay significant attention to statutory text when construing statutes and, relatedly, that legislative history use by the Court as a whole has declined compared to its heydey in the 1970s. The account of textualism’s triumph is so prevalent that some scholars have declared purposivism—or at least traditional purposivism—essentially defunct. Two prominent textualist scholars in particular have suggested that there is a “new purposivism” at work on the modern Court and that this purposivism is textually constrained, limiting its focus to the means identified in the text of the statute rather than the underlying policy objectives motivating the statute—or, alternately, using purpose as a threshold consideration in determining whether a statute is ambiguous in the first place.

This Article breaks from the conventional “purposivism is dead or dying” wisdom in two important ways. First, it argues, based on empirical analysis of 499 Roberts Court statutory interpretation cases decided between 2006 and 2017, that traditional purposivism is alive and well on the modern Supreme Court. That is, while purposivist Justices in the modern era do pay attention to text and invoke textual canons in a way that their 1970s purposivist counterparts did not, modern purposivists have not abandoned the traditional purposive approach of identifying a statute’s policy objective and adopting the construction that best fits that objective. On the contrary, modern purposivists regularly invoke statutory purpose, intent, and legislative history—even if the Court as a whole does not. Second, and perhaps more importantly, the Court’s textualist Justices quietly have been engaging in a form of purposive analysis that comes closer to traditional purposivism than scholars and jurists have recognized. That is, the textualist Justices have been using pragmatic reasoning, as well as traditional textual canons such as noscitur a sociis and the whole act rule, to impute a specific intent or policy goal to Congress in many cases. This practice, which I call “backdoor purposivism,” goes beyond using text as the best evidence of statutory purpose and entails significant judicial guesswork and construction of legislative purpose and intent. The Article suggests that, in the end, there may be less distance between textualists and purposivists than the old debates suggest—but because textualists have embraced purpose and intent in unexpected ways, rather than because, or merely because, purposivists have become more text-focused. It concludes by advocating that both textualists and purposivists employ interpretive resources outside their preferred toolkit, in order to check the accuracy of their initial statutory readings and to curb the influence of their inherent personal biases.

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

Related:  Michael Dorf's recent post noted here, Did Jam v. IFC Kill Purposivism?