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37 posts from March 2019


Eric Segall on Jud Campbell on Originalism and the First Amendment
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Thomas, Jud Campbell, and Free Speech Originalism.  From the beginning: 

Professor Jud Campbell (whom I have met only a few times casually) at the end of his excellent Yale Law Journal article titled "Natural Rights and the First Amendment," concluded the following:

The First Amendment ... was not designed or originally understood to provide a font of judicially crafted doctrines protecting expressive freedom....[P]erhaps, with a hint of irony for those who seek constitutional stability in original meaning, this lost history reveals our modern dilemma: the proper scope of expressive freedom is left for us to determine.

This important contribution to both First Amendment doctrine and originalism should be read by everyone interested in the First Amendment or originalism, especially Justice Clarence Thomas, who recently advocated overturning the landmark decision New York Times v. Sullivan. ...

There are two reasons Justice Thomas should read Professor Campbell's article. First, Campbell persuasively demonstrates that most of the Court's free speech doctrine cannot be supported by an originalist methodology. In a sense, this thesis supports Justice Thomas' view that Sullivan should be reexamined, but it also calls into question many other Supreme Court decisions that comport with Justice Thomas' priors. No doubt, Thomas will not suggest reconsidering those cases. Second, Campbell's anti-originalist First Amendment observations apply equally to most other important areas of litigated constitutional law, few of which can be traced back to founding era evidence.

I will not and could not repeat in detail the sophisticated analysis Campbell embraces to demonstrate that hard First Amendment questions today cannot be answered by looking back to the Founding. In sum, the argument goes like this: freedom of speech and the press were thought by the Founders to be natural rights, but what that meant to them was much different from how we view natural rights or some might say fundamental rights today. According to Campbell:

Americans typically viewed natural rights as aspects of natural liberty that governments should help protect against private interference (through tort law, property law, and so forth) and that governments themselves could restrain only to promote the public good and only so long as the people or their representatives consented. And assessing the public good—generally understood as the welfare of the entire society—was almost entirely a legislative task, leaving very little room for judicial involvement. Natural rights thus powerfully shaped the way that the Founders thought about the purposes and structure of government, but they were not legal 'trumps' in the way that we often talk about rights today.

This recounting is consistent with my oft-stated views, discussed most extensively in my book "Originalism as Faith," that the founders thought judges should interfere with legislative decisions only when there was clear constitutional error. Thus, although there were some shared determinate legal interpretations of the freedom of speech and press, such as prior restraints were disallowed and people had the right to state their views in good faith, these were relatively narrow rules, and most everything else was subject to regulation for the common good. The combination of those beliefs with a strong skepticism about judicial power, strongly suggests that the Founders believed that the balancing of speech and press freedoms with other concerns would be left primarily to the legislature in all but the most egregious cases. . . .

My quick thoughts: Professor Campbell's article is an important one.  (He presented it at a San Diego Originalism Works-in-Progress conference a while back). It might be right.  If it is, it's not "anti-originalist."  It just means that the original meaning of the First Amendment is narrower than many people today think or hope.  Originalists should be fine with that.

Second, even if Professor Campbell (as glossed by Professor Segall) is right, the impact depends quite a bit on how big the category of "the most egregious cases" is.  If the category equates to the government suppressing views it doesn't like, then it's still a fairly big category.

Third, I'm not sure Professor Campbell is right.  He may well be right about how people in the founding era thought about natural rights.  But there's a difference between a natural right and a right written in to a legal text, even if the written right is based on a natural right.  The question is what the founding generation understood the written-ness of the First Amendment to accomplish.  It is written in categorical and imperative terms ("Congress shall make no law...") that contemporaneous evidence indicates they thought would be (at least to some extent) judicially enforceable.  I agree that it seems doubtful this was an invitation to judicial evolution.  But the argument for reading it to direct judicial enforcement of the free speech right as it was then understood seems strong.


Treaty Originalism and Cougar Den
Michael Ramsey

This week's Supreme Court decision in Washington State Department of Licensing v. Cougar Den Inc. is all about treaty originalism.  The case turns on the meaning of "the right, in common with citizens of the United States, to travel upon all public  highways," which is reserved to members of the Yakama Tribe by an 1855 treaty.  Washington State imposes a tax on fuel transported on the public highway, which the Yakama claim they do not have to pay due the the treaty right.  The Court divided 5-4 in the Tribe's favor, but all of the opinions are originalist.  Justice Breyer for the plurality (himself, Sotomayor, Kagan) and Gorsuch concurring (for himself and Ginsburg) say that what the phrase meant in 1855 was that travel would not be burdened, including by taxes on goods being transported.  Here's Gorsuch:

Our job here is a modest one. We are charged with adopting the interpretation most consistent with the treaty's original meaning. Eastern AirlinesInc. v. Floyd499 U. S. 530, 534-535 (1991). When we're dealing with a  tribal treaty, too, we must "give effect to the terms as the Indians themselves would have understood them." Minnesota v. Mille Lacs Band of Chippewa Indians526 U. S. 172, 196 (1999). After all, the United States drew up this contract, and we normally construe any ambiguities against the drafter who enjoys the power of the pen. Nor is there any question that the government employed that power to its advantage in this case. During the negotiations "English words were translated into Chinook jargon . . . although that was not the primary language" of the Tribe. Yakama Indian Nation v. Flores955 F. Supp. 1229, 1243 (ED Wash. 1997). After the parties reached agreement, the U. S. negotiators wrote the treaty in English—a language that the Yakamas couldn't read or write. And like many such treaties, this one was by all accounts more nearly imposed on the Tribe than a product of its free choice.

When it comes to the Yakamas' understanding of the treaty's terms in 1855, we have the benefit of a set of unchallenged factual findings. The findings come from a separate case involving the Yakamas' challenge to certain restrictions on their logging operations. Id., at 1231. The state Superior Court relied on these factual findings in this case and held Washington collaterally estopped from challenging them. Because the State did not challenge the Superior Court's estoppel ruling either in the Washington Supreme Court or here, these findings are binding on us as well.

They also tell us all we need to know to resolve this case. To some modern ears, the right to travel in common with others might seem merely a right to use the roads subject to the same taxes and regulations as everyone else. Post, at 1-2 (KAVANAUGH, J., dissenting). But that is not how the Yakamas understood the treaty's terms. To the Yakamas, the phrase "'in common with' . . . implie[d] that the Indian and non-Indian use [would] be joint but [did]  not imply that the Indian use [would] be in any way restricted." Yakama Indian Nation955 F. Supp., at 1265. In fact, "[i]n the Yakama language, the term 'in common with' . . . suggest[ed] public use or general use without restriction." Ibid. So "[t]he most the Indians would have understood . . . of the term[s] 'in common with' and 'public' was that they would share the use of the road with whites." Ibid. Significantly, there is "no evidence [to] sugges[t] that the term 'in common with' placed Indians in the same category as non-Indians with respect to any tax or fee the latter must bear with respect to public roads." Id., at 1247. Instead, the evidence suggests that the Yakamas understood the right-to-travel provision to provide them "with the right to travel on all public highways without being subject to any licensing and permitting fees related to the exercise of that right while engaged in the transportation of tribal goods." Id., at 1262.

Applying these factual findings to our case requires a ruling for the Yakamas. As the Washington Supreme Court recognized, the treaty's terms permit regulations that allow the Yakamas and non-Indians to share the road in common and travel along it safely together. But they do not permit encumbrances on the ability of tribal members to bring their goods to and from market. And by everyone's admission, the state tax at issue here isn't about facilitating peaceful coexistence of tribal members and non-Indians on the public highways. It is about taxing a good as it passes to and from market—exactly what the treaty forbids.

A wealth of historical evidence confirms this understanding. The Yakama Indian Nation decision supplies an admirably rich account of the history, but it is enough to recount just some of the most salient details. "Prior to and at the time the treaty was negotiated," the Yakamas "engaged in a system of trade and exchange with other plateau tribes" and tribes "of the Northwest coast and  plains of Montana and Wyoming." Ibid. This system came with no restrictions; the Yakamas enjoyed "free and open access to trade networks in order to maintain their system of trade and exchange." Id., at 1263. They traveled to Oregon and maybe even to California to trade "fir trees, lava rocks, horses, and various species of salmon." Id., at 1262-1263. This extensive travel "was necessary to obtain goods that were otherwise unavailable to [the Yakamas] but important for sustenance and religious purposes." Id., at 1262. Indeed, "far-reaching travel was an intrinsic ingredient in virtually every aspect of Yakama culture." Id., at 1238. Travel for purposes of trade was so important to the "Yakamas' way of life that they could not have performed and functioned as a distinct culture . . . without extensive travel." Ibid. (internal quotation marks omitted).

Everyone understood that the treaty would protect the Yakamas' preexisting right to take goods to and from market freely throughout their traditional trading area. "At the treaty negotiations, a primary concern of the Indians was that they have freedom to move about to . . . trade." Id., at 1264. Isaac Stevens, the Governor of the Washington Territory, specifically promised the Yakamas that they would "'be allowed to go on the roads to take [their] things to market.'" Id., at 1244 (emphasis deleted). Governor Stevens called this the "'same libert[y]'" to travel with goods free of restriction "'outside the reservation'" that the Tribe would enjoy within the new reservation's boundaries. Ibid. Indeed, the U. S. representatives' "statements regarding the Yakama's use of the public highways to take their goods to market clearly and without ambiguity promised the Yakamas the use of public highways without restriction for future trading endeavors." Id., at 1265. Before the treaty, then, the Yakamas traveled extensively without paying taxes to bring goods to and from market, and the record suggests that the Yakamas would have understood the treaty to preserve that liberty.

Justice Kavanaugh in dissent (joined by Justice Thomas) takes a more purely textualist approach:

The text of the 1855 treaty between the United States and the Yakama Tribe affords the Tribe a "right, in common with citizens of the United States, to travel upon all public highways." Treaty Between the United States and the Yakama Nation of Indians, Art. III, June 9, 1855, 12 Stat. 953. The treaty's "in common with" language means what it says. The treaty recognizes tribal members' right to travel on off-reservation public highways on equal terms with other U. S. citizens. Under the text of the treaty, the tribal members, like other U. S. citizens, therefore still remain subject to nondiscriminatory state highway regulations—that is, to regulations that apply equally to tribal members and other U. S. citizens. See Mescalero Apache Tribe v. Jones411 U. S. 145, 148-149 (1973). That includes, for example, speed limits, truck restrictions, and reckless driving laws.


The plurality, as well as the concurrence in the judgment, suggests that the treaty, if construed that way, would not have been important to the Yakamas. For that reason, the plurality and the concurrence would not adhere to that textual meaning and would interpret "in common with" other U. S. citizens to mean, in essence, "exempt from regulations that apply to" other U. S. citizens.

I respectfully disagree with that analysis. The treaty right to travel on the public highways "in common with"—that is, on equal terms with—other U. S. citizens was important to the Yakama tribal members at the time the treaty was signed. That is because, as of 1855, States and the Federal Government sometimes required tribal members to seek permission before leaving their reservations or even prohibited tribal members from leaving their reservations altogether. See, e.g., Treaty Between the United States of America and the Utah Indians, Art. VII, Dec. 30, 1849, 9 Stat 985; Mo. Rev. Stat., ch. 80, §10 (1845). The Yakamas needed to travel to sell their goods and trade for other goods. As a result, those kinds of laws would have devastated the Yakamas' way of life. Importantly, the terms of the 1855 treaty made crystal clear that those kinds of travel restrictions could not be imposed on the Yakamas.

Chief Justice Roberts (for himself, Thomas, Alito and Kavanaugh) dissented as well, on the narrower ground that the treaty right -- whatever its extent -- did not extend to exemptions from taxes on goods.

So the Justices agreed that the issue was the original meaning of the treaty; they just disagreed on what that was, and how to find it.  Again (as with statutory originalism), treaty originalism is the assumed interpretive approach.


New Supreme Court Cases of Possible Originalist Interest
Michael Ramsey

This week the Supreme Court granted certiorari in two cases that may lead to originalist analysis.

In Ramos v. Louisiana, the issue is whether the rule of unanimous criminal juries under the Sixth Amendment applies to the states.  In Kahler v. Kansas, the issue is whether the Eighth Amendment or the Due Process Clause requires a state to recognize an insanity defense. 

Both issues are way outside my areas of expertise but on a quick look they seem to invite originalist analysis.  Ramos asks the Court to overrule its prior decision in Apodaca v. Oregon (1972).  Apodaca was decided in a time when selective incorporation was more accepted.  As the Court's recent decision in Timbs v. Indiana indicates, selective incorporation is suspect these days (Timbs incorporated the excessive fines clause against the states unanimously without any hesitation).  Partly I think this is a formalist impulse -- it does not look right (to formalists) to have judges pick which rights are and are not incorporated based on their own intuitions (which is pretty much what Apodaca did).  But I also think there is a historical sense that whatever else the Fourteenth Amendment did, it as a general matter was intended to extend the Bill of Rights to the states.  In any event, I would think that to overrule Apodaca the Court will need strong historical evidence that the unanimous criminal jury was a well-established right in 1868.  And if it turns out that the unanimous-jury rule is itself a dubious originalist interpretation of the Sixth Amendment (which does not on its face say juries must be unanimous), that would be a reason to keep Apodaca.

In Kahler, the historical angle also could be important.  My understanding is that the insanity defense in some form has ancient roots (at least in the death penalty context).  If that's right, it could play a role in persuading Justices that are not generally sympathetic to such claims.

In sum, Kahler and Ramos are both cases in which historical/originalist arguments may be deployed to reach politically liberal results.

UPDATE:  Garrett Epps has thoughts on the grants in The Atlantic. (Via How Appealing).


Second Amendment Originalism from Judge Amy Coney Barrett
Michael Ramsey

From Ed Whelan at NRO Bench Memos

Rickey I. Kanter pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. Both federal law and Wisconsin law bar a convicted felon from possessing a firearm.

On Friday, a Seventh Circuit panel ruled (in Kanter v. Barr) that the application of those federal and Wisconsin bars to Kanter did not violate his Second Amendment rights. In an impressive dissent (beginning here), Judge Amy Coney Barrett explained why she disagreed. From her opening paragraphs (emphasis in original):

History is consistent with common sense: it demonstrates that legislatures have the power to prohibit dangerous people from possessing guns. But that power extends only to people who are dangerous. Founding-era legislatures did not strip felons of the right to bear arms simply because of their status as felons. Nor have the parties introduced any evidence that founding-era legislatures imposed virtue-based restrictions on the right; such restrictions applied to civic rights like voting and jury service, not to individual rights like the right to possess a gun. In 1791—and for well more than a century afterward— legislatures disqualified categories of people from the right to bear arms only when they judged that doing so was necessary to protect the public safety. ...

Commentators have puzzled over Justice Scalia's paragraph in District of Columbia v. Heller in which he seemed to approve of various limitations on gun possession, including possession by felons, without explaining how to determine which limitations are constitutional.  I think, consistent with his approach to the First Amendment, this is clearly how he would have done it -- by asking what limitations were commonly imposed in 1791 and thereafter.  (See my discussion in this article).

RELATED:  Recently published in the Federalist Society Review (Vol. 20), Joseph Greenlee: Concealed Carry and the Right to Bear Arms.  It concludes:

... [I]s it constitutional for a state to prohibit open carry while broadly allowing concealed carry—as some states do today? The “original meaning” sources relied on by the Heller Court, the right-to-carry cases extolled by the Heller Court, and post-Heller decisions from lower courts indicate that the right to bear arms is not infringed as long as law-abiding citizens are able to publicly bear arms either openly or concealed.

(Thanks to Will Foster for the pointer).


Proposals to Stay a SCOTUS Decision Out of Respect for Reliance Interests
Andrew Hyman

In an essay published this winter, Ed Whelan asked: “[W]hat if the Court said, ‘We believe this is the best reading of the Constitution. We recognize that it will be disruptive, and we’re going to give the political branches X years to work through an amendment to address this if they see fit’?”  Whelan’s idea of staying the effect of a U.S. Supreme Court (SCOTUS) decision for a fixed time is similar to the idea of allowing a judicial decision to apply prospectively but not retrospectively, even though the usual federal rule is that judicial decisions apply both prospectively and retrospectively.
As discussed in The Law of Judicial Precedent (c. 2016, chapter 37), the federal rule against prospective-only judicial decisions has exceptions, such as when retrospective application would destroy vested rights or contracts.  Whelan suggests another exception, and it’s a reasonable one.  I don’t think that such an exception would always be appropriate in constitutional cases, or even in constitutional cases that make a clear break with past decisions.  However, in a constitutional case where the Court would otherwise reach a different result based upon reliance interests and stare decisis, and thus would preserve a  departure from the Constitution’s actual meaning, the Whelan exception seems wise, as well as very similar to the existing exception that protects vested rights or contracts.  Allowing an appeal to the American people would seem like a very respectful thing for SCOTUS to do.  
One could imagine variations on Whelan’s proposal.  For example, the Court might stay its decision long enough to give people ample time to rely more fully on the status quo ante, while giving them plenty of time to prepare for the decision to take effect.  But ultimately, the actual meaning of the Constitution would prevail, and the Court’s former error would be corrected.
I do not believe that staying a decision in these ways would be unconstitutional.  But even if unconstitutional, the stay would be a temporary procedural matter, compared to permanently and substantively amending the Constitution (in effect) by judicial decision for as long as the country survives into the future, all the while tempting future judges to repeatedly wield that awesome amendment power.
Justices Douglas and Scalia may seem like an odd couple, but Scalia laudably wrote this in a 1989 dissent: “With some reservation concerning decisions that have become so embedded in our system of government that return is no longer possible (a description that surely does not apply to Booth), I agree with Justice Douglas: ‘A judge looking at a constitutional decision may have compulsions to revere past history and accept what was once written. But he remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it.’"  Indeed, preserving the gloss is not as necessary as the Court has sometimes said.
Justice Gorsuch suggested in 2015 when he was on the Tenth Circuit that the retroactivity of judicial decisions follows from the separation of powers.  But I do not believe he ruled out exceptions to retroactivity.  Justice White went a lot farther than making exceptions to retroactivity, in a 1987 SCOTUS dissent:
[C]oncerns about the supposed usurpation of legislative authority by this Court generally go more to the substance of the Court's decisions than to whether or not they are retroactive. Surely those who believe that the Court has overstepped the bounds of its legitimate authority in announcing a new rule of constitutional law will find little solace in a decision holding the new rule retroactive. If a decision is in some sense illegitimate, making it retroactive is a useless gesture that will fool no one. If, on the other hand, the decision is a salutary one, but one whose purposes are ill-served by retroactive application, retroactivity may be worse than useless, imposing costs on the criminal justice system that will likely be uncompensated for by any perceptible gains in "judicial legitimacy."
White’s concerns can be addressed much more modestly by making a small number of SCOTUS decisions prospective-only starting on a future date certain.  This would probably do wonders for the original meaning of the Constitution, although it is possible that some justices might take it as an opportunity to give their own preferred innovations a smoother birth.

Calvin Johnson and Kennerly Davis on the Constitution and the Wealth Tax
Michael Ramsey

The constitutional debate over the wealth tax continues--

At Balkinization, Calvin Johnson (Texas), guest blogging: A Wealth Tax is Constitutional.  From the introduction:

[Senator] Warren’s wealth tax would be constitutional.   The defining characteristic of a “direct tax,” according to the Founders, is that it is the kind of tax in which apportionment among the states by population would be appropriate and reasonable.    If apportionment among the states by population is not appropriate and reasonable, the tax is not a direct tax.
The original meaning of “direct tax” was a tax directly on states, that is, requisitions.  The term “direct tax” expanded, as language often expands, to include the kinds of state taxes that could be used to satisfy state requisitions.  But if a tax could not be reasonably and appropriately apportioned among states by population, the tax does not sufficiently resemble a state requisition and so the tax is not direct.  Thus, for example a tax on imports was not a direct tax because it could not be known in which state the goods would settle and which state should get credit in its quota under a requisition.  Excises, duties and carriage taxes were once considered direct taxes because they were part of the system of requisitions upon the states, but they were excluded from the definition of “direct tax” once it was known that they did not have the necessary reasonable and appropriate apportionability.
Today, apportionment of a wealth tax by population is not reasonable or appropriate.   Wealth per capita in poor Mississippi is just over half of wealth per capita in rich Maryland.  Apportionment by population would mean that tax rates in Mississippi would have to be almost twice the rates in Maryland.  The result has no policy justification, but would simply arise by necessity from the fact that Mississippi is such a poor state that is has so little tax base over which to spread its quota.  Because apportionment would not be reasonable, a tax on wealth today would not be viewed as direct using the Framers’ original reasoning.
At the Federalist Society Blog, J. Kennerly Davis (former Deputy Attorney General of Virginia):  The Many Issues Raised by Senator Warren's Wealth Tax.  The post does not come to a firm conclusion but makes this suggestive point:
Thus, the Framers divided federal taxes into two mutually exclusive categories: direct taxes subject to apportionment, and all other non-direct taxes such as duties, imposts and excises subject to the uniformity requirement. Non-direct taxes generally fall on commercial transactions and related activity such as imports, exports, manufacturing activity, sales and consumption. The Framers considered non-direct taxes to be a relatively safe form of taxation because they tend to be self-limiting for reasons related to basic economics. If Congress raises non-direct taxes, that will increase the cost of the commercial activities being taxed. The commercial activity will decrease as a result of the greater economic burden, and so will government revenue. Congress has a real incentive to be reasonable, as well as a requirement to be uniform.

Direct taxes, by contrast, are not self-limiting in the way that taxes on commercial activities are. The Framers were more concerned that taxes levied directly on individuals might be increased to abusive levels, so they sought to limit the potential for abuse with the rather cumbersome apportionment requirement.


Tyler Broker: Church And State Originalism
Michael Ramsey

Tyler Broker (Privacy and Free Expression Fellow, University of Arizona James E. Rogers College of Law) has posted Church And State Originalism (University of Memphis Law Review, forthcoming) (34 pages) on SSRN.  Here is the abstract:

This work focuses on the religious separation clauses contained within the First Amendment and offers both a descriptive claim that current doctrine is far too narrow, and a normative claim that a broader Madisonian framework of free conscience religious liberty is superior to current doctrine.

And from the introduction (footnotes omitted):

An intellectual distinction between “civil” and “spiritual” authority long preceded the enactment of the United States Constitution. It was not until ratification however, that the first country in recorded history with no established religion arose into actual practice. The religious separation clauses contained within the First Amendment are also unique in that, unlike most other historic provisions debated during ratification, battle lines based on political affiliation, educational background, or religious association did not develop in Congress over the issue.  The reason for unity behind such an unprecedented commitment was most Founders viewed the principle behind separation, the so-called “liberty of conscience”, as an unalienable right necessary to the Lockean commitment to life, liberty, and property.

How the abstract principle of free conscience was expressed in practice depended, of course, on the concerns, customs, and institutions of the time. At the time of the Founding, two chief concerns of the citizenry were limitations on the power of the federal government in general and limitations on the government’s power to tax in particular. The antitax rhetoric of the revolution produced “from the moment of independence from England in 1776 . . . formal protests with state legislatures around the country, demanding to be freed of the responsibility to pay taxes to support churches from whose doctrines they dissented.”  Such widespread responses demonstrated an obvious practical reality for the Founders; mandatory religious taxation was problematic in such a religiously diverse country.  There were still some at the state level however, who remained committed to government funding of churches. The desire to keep tax assessments for religious purposes at the state level led to informative debates regarding the fundamental elements of religious separation.

The most famous and influential of these debates occurred in pre-Constitution Virginia where a bill was proposed that would have permitted tax assessments for churches, but afforded citizens complete individual autonomy to select which church could receive the funds.  The bill also included specific exemptions for Quakers and Mennonites who belonged to churches without clergy. Along with the specific exemptions, all undesignated funds were to be directed to the state general fund for developing “seminaries of learning” that were not required by the text of bill to be religious in nature in order to receive funding.

In the view of the bill’s proponents, including founders such as Patrick Henry, the absence of continued public funding of religion at the state level was “fatal to the Strength and Stability of civil government.” However, because the proposed bill “would have no Sect or Denomination of Christians privileged to encroach upon the rights of another” and granted the individual total autonomy to direct the funds, its proponents argued they were offering “a General and equal contribution of the whole state upon the most equitable footing that is possible to place it.” To James Madison however, this nonpreferential, neutrally applied, and individual choice assessment framework proposed in Virginia remained impermissibly coercive to freedom of conscience.


Madison ultimately succeeded in defeating the religious assessment bill in Virginia. However, Madison’s victory in establishing his own framework of religious freedom of conscience was, at first, limited to the state of Virginia. In fact, many other states adopted the type of framework Madison successfully rejected and kept such systems in place well after ratification of the federal constitution. Although not every state legislature adopted Madison’s exact structure, during ratification of the federal Constitution Madison was successful in persuading Congress to embrace his principled version of freedom of conscience that he had successfully passed in Virginia....

... To understand how the freedom of conscience principles championed by Madison in Virginia became the fundamental American precepts of religious separation in the Constitution, one need only examine the history and plain language of the religious separation clauses contained within the First Amendment.


Robert Nagel: Conservatism and Constitutionalism in the United States
Michael Ramsey

Robert F. Nagel (University of Colorado Law School) has posted Conservatism and Constitutionalism in the United States (22 pages) on SSRN.  Here is the abstract: 

This paper inquires whether conservative political philosophy provides intellectual resources that might be expected to prevent judges from yielding to the temptation to impose their own strong moral beliefs about how society should be improved. The question emerges from the fact that for more than four decades a Supreme Court dominated by relatively conservative appointees has continued to produce decisions mandating radical social changes that cannot be convincingly traced to conventional sources of legal authority.

The paper examines a range of ideas about what conservatism is and rejects the possibility that most of these can be expected to discipline the temptation to impose personal moral visions and aspirations. However, one strand of conservative thought is identified that can provide the necessary self-restraint. This strand is found in the writings of Burke on tradition and of Oakeshott on practical knowledge and in Scalia’s defense of the practice of defining traditions at the narrowest level of generality. 

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

It's not clear to me, however, how a particular brand of political philosophy can be a restraining influence on people (especially judges) who don't share that philosophy.  True, one could attempt to convert everyone to that philosophy, but it seems perhaps more likely that one could find an institutional argument (such as judicial restraint or originalism) that might appeal to people of various political philosophies.


Stephen Presser on Jonathan Gienapp's "The Second Creation"
Michael Ramsey

At the Federalist Society Blog, Stephen Presser reviews  The Second Creation: Fixing the American Constitution in the Founding Era, by Jonathan Gienapp: The Tenacity of Transformation Theory, and Why Constitutional History Deserves Better.  From the introduction:

Jonathan Gienapp, author of The Second Creation: Fixing the American Constitution in the Founding Era, is a junior colleague of [Jack] Rakove’s at Stanford. Like Rakove and [Mary Sarah] Bilder, he considers Madison central to his exposition. But rather than make Madison’s Notes on the Constitutional Convention his subject, Professor Gienapp focuses on the activities of the first Congress, where Madison was a prime mover. Gienapp argues that the first Congress, in essence, engaged in a “second creation” of the Constitution, abandoning one closer to the British “constitution” of broad principles which guaranteed flexibility and change in favor of one fixed in meaning for all time, the interpretation of which relied on an “original understanding” of the document’s framers. In other words, Gienapp sees the first Congress as a moment of constitutional transformation.

The progressive trope of transformation, which implicates the notion of a “living” or “evolving” Constitution, seems like it was designed, consciously or unconsciously, to support modern judicial progressives, such as the members of the Warren Court or Justices Anthony Kennedy and Sandra Day O’Connor, who understand their task to be to refashion constitutional principles—particularly the “equal protection” and “due process” provisions of that charter—to fit the “evolving standards of decency” that supposedly characterize American civilization.

Rakove’s, Bilder’s, and Gienapp’s books could be seen as an attack on the jurisprudence of originalists like Justices Antonin Scalia and Clarence Thomas, who embrace the notion that the only sensible and valid strategy of constitutional hermeneutics is to interpret the document according to its plain meaning at the time it was passed or amended. The theory of an evolutionary development of constitutional meaning, based as it is on an idea similar to Darwin’s speculation with regard to the evolution of the species, has undeniable intuitive appeal. Nevertheless, evolutionary jurisprudence is in uneasy tension with more basic ideas about ours being a government of laws and not of men, and thus with our hallowed concept of the rule of law itself. If judges become legislators, there is an end to separation of powers, and popular sovereignty also goes by the board. Some scholars are fighting a rearguard action. But Gienapp’s new book and the honors bestowed on previous books telling a similar story—Horwitz’s and Bilder’s books both won the Bancroft Prize, the highest accolade the history fraternity can bestow—show that alternative stories about constitutional and legal development are out of favor.

And from later on:

The notion that one can look to the debates in Congress for authoritative interpretations of the Constitution undergirds Gienapp’s book, but it is mistaken. Gienapp is a historian, not a lawyer, and his book has very little on the early federal courts and how they understood the Constitution. While Rakove once appeared to understand that there were great men before Agamemnon—most other American historians appear to believe that the work of the federal courts did not begin in earnest until John Marshall became Chief Justice in the early nineteenth century—Gienapp does not support his argument about a second creation of the Constitution by examining the interpretation of the Constitution in the federal courts in the 1790s. Had he done so, I suspect he might have discerned that the Constitution was not transformed from a malleable to a fixed document. Rather, the implicit fixed-meaning approach—without which Federalist 78 is incomprehensible—prevailed from the beginning to the end of the decade in the courts.[12] If one wants to understand constitutional hermeneutics, one’s inquiry should include all three branches of the government, and perhaps even the attitudes of the press, the public, and the academy, though this may be asking too much of any single scholar.

Thanks to Will Foster for the pointer.

RELATED:  For coverage of other reviews of The Second Creation, see here (generally favorable symposium at Balkinization), here (generally negative review by Ilan Wurman), and here (comments by Mike Rappaport).


Tara Leigh Grove: Presidential Laws and the Missing Interpretive Theory
Michael Ramsey

Tara Leigh Grove (William & Mary Law School) has posted Presidential Laws and the Missing Interpretive Theory (University of Pennsylvania Law Review, Vol. 168 (2020, forthcoming)) (48 pages) on SSRN.  Here is the abstract:

There is something missing in interpretive theory. Recent controversies—involving, for example, the first travel ban and funding for sanctuary cities—demonstrate that presidential “laws” (executive orders, proclamations, and other directives) raise important questions of meaning. Yet, while there is a rich literature on statutory interpretation and a growing one on regulatory interpretation, there is no theory about how to discern the meaning of presidential directives. Courts, for their part, have repeatedly assumed that presidential directives should be treated just like statutes. But that cannot be right: Theories of interpretation depend on both constitutional law and institutional setting. For statutes, the relevant law comes from Article I and the procedures governing Congress. For presidential directives, the starting point must be Article II. This Article contends that Article II and the distinct institutional setting of the presidency point toward textualism. Article II, particularly the Opinions Clause, gives the President considerable power to structure the process by which he issues directives. Drawing on various sources—including the author’s interviews with officials from the Trump, Obama, and other administrations—this Article offers a window into that process. Since at least the 1930s, presidents have invited agency officials to draft, negotiate over, and redraft presidential directives. The final directive signed by the President may not reflect his ideal position; instead, presidents often issue compromise directives that reflect their subordinates’ recommendations. This Article argues that courts respect that structure, and hold presidents accountable for any mistakes, by adhering closely to the text. Thus, whatever one thinks about honoring the textual compromises that come from Congress, there are independent and important reasons to hew strictly to the text that comes from the White House. Notably, this analysis has important implications not only for interpretive theory but also for broader questions about the constitutional separation of powers. In an era of ever-expanding presidential power, presidents have at times (and surprisingly) allowed themselves to be constrained by their own administration.