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33 posts from August 2019


Michael Lewis: Protecting Our Constitution Through an Anti-Originalist Interpretive Canon of Constitutional Interpretation
Michael Ramsey

Michael Lewis (Rath, Young and Pignatelli) has posted Evil History: Protecting Our Constitution Through an Anti-Originalist Interpretive Canon of Constitutional Interpretation (University of New Hampshire Law Review, forthcoming) (35 pages) on SSRN.  Here is the abstract:

This review assesses three recent books on the subject of originalism. Each approaches the question of originalism from a different angle. None of the books confronts the raw challenge to the authority of the framers leveled by Justice Thurgood Marshall in his speech upon the bicentennial of the United States Constitution. Marshall argued that the founding generation was too morally compromised, too bereft of information we now have as a result of the existence and experiences of millions of Americans since the close of the 18th century, and too imperfect in their efforts to design a sustainable government, to justify the devotion to their perspective originalism demands. In the face of this critique, originalism, which is a devotional doctrine, and originalists, its devotees, nevertheless insist that we should obey the founding generation and ignore so much that we have learned since, including the “the reality that a nation putatively based on the principle of human equality was actually a prison house in which millions of Americans had virtually no rights at all.” 

Drawing on this and other more complete descriptions of our history, this review demands that advocates for an originalist methodology confront the full brunt of our past, both good and evil. The failure to do so has deep moral, political, sociological and legal ramifications. “Law writes the past, not just its own past, but the past for those over whom law seeks to exercise its dominion.” To the extent that law writes a past that covers-up, papers-over, ignores or subverts the evil aspects of history, it engages in abuses that we would condemn if perpetrated by other nations as denial.

As a methodology, this review rejects originalism as a presumptively justifiable methodology. It goes further. It proposes a canon of constitutional construction that would proscribe the use of originalism in any of its variants unless certain prophylactic historical facts are established or negated by the proponents of any form of originalism. Broadly speaking, this canon would require any party in any litigation or legal dispute seeking to offer or rely upon the perspective of the founding generation in any dispositive fashion to demonstrate that the clause or clauses to be interpreted and the history to be deployed bears no supporting relationship to the evils of our national past and would not further principles underlying those evils. 

Specifically, such a canon would require proponents of the originalism methodology to demonstrate that originalism arguments and evidence should be rejected if they would further original principles that perpetuated the institution of slavery, furthered the expulsion and mass extermination of Native Americans as a national policy, buttressed the terrorism of Redemption upon the collapse of Reconstruction, supported the political and personal subjugation of women and children, or permitted the use of governmental force to suppress political speech in the forms present during any of the historical periods from which the evidence is drawn. If the proponents of originalism are not able to overcome this burden, they must rely upon the many methodological approaches to constitutional interpretation that are not originalism, that have developed over the course of American history, and have been embraced and incorporated into our law without great controversy.

It's not at all clear to me that the last sentence of the abstract follows from the prior analysis.  I would think that the implication of the "evil history" position is that there should not be constitutional judicial review at all (or rather, that there should be constitutional judicial review only as to constitutional provisions not infected by the "evil history").


Evan Bernick & Christopher Green: What is the Object of the Article VI Oath?
Michael Ramsey

Evan D. Bernick (judicial clerk) and Christopher R. Green (University of Mississippi - School of Law) have posted What is the Object of the Article VI Oath? (54 pages) on SSRN.  Here is the abstract:

How and why are officers today bound to the Constitution? Article VI gives us a crystal-clear answer: they are bound “by oath or affirmation, to support this Constitution.” But what is the content — the object — of that promise? American constitutional culture today describes its Constitution in ways that presuppose that the Article VI oath binds office-holders to an external, objective, common object: the same commitment for all oath-takers today, and the same commitment today as in the past. Justices on the Supreme Court took their constitutional oaths at different times, spread out over 27 years from 1991 to 2018, but they claim to fulfill those nine oaths by speaking collectively of “the Constitution.” Americans regularly describe their Constitution as the oldest still-operational written national Constitution in the world. These sorts of contingent practices could of course change. But until they do, we should understand oath-takers to be swearing to obey the same entity which has been operative since the eighteenth century. If we have a living Constitution today, it must have been living from the very start. Our current constitutional culture correctly rejects post-Founding “constitutional abiogenesis” — a transition from a non-living to a living Constitution between the Founding and today. Change in constitutional requirements may be justified only if rooted in the rules for constitutional change operative at the Founding.

Via Larry Solum at Legal Theory Blog, who say "Highly recommended.  Download it while it's hot!"


Eric Segall on Originalism and Structural Reasoning
Michael Ramsey

At Dorf on Law, Eric Segall: Strange Bedfellows: Structural Arguments and Originalism.  Fro the beginning:

I'd like to call attention to a wonderful new essay by Professor Thomas Colby titled "Originalism and Structural Argument" published in the Northwestern University Law Review [ed.: noted here]. Colby raises serious questions about federalism and separation of powers cases that most originalists favor but which are difficult to reconcile with originalist methodologies. Colby, a long-time critic of originalism, especially the so-called “New Originalism,” contends that cases like Printz v. United States (Congress can’t commandeer state executives unless it does so incidentally through laws applicable to private actors too), Alden v. Maine (states have sovereign immunity from federal question suits in their own courts), and Seminole Tribe of Florida v. Florida (states can’t be sued in federal courts by citizens of their own states), are all based on non-textual, structural arguments arguably inconsistent with the originalist canon. Colby’s arguments are strong and should be wrestled with by originalist scholars who favor the results in these and similar cases.

Colby correctly points out that, although there are numerous and varied originalist theories, most of them are centered around the importance of constitutional text. Professor Lawrence Solum, the only law professor to testify about originalism during then-Judge Neil Gorsuch’s confirmation hearing, said during his testimony that the “whole point of originalism is to respect the text.” Numerous prominent academic originalists such as Michael Paulsen, Stephen Calabresi, and Saikrishna Prakash, as well as many others, give the text interpretative primacy, and, according to Colby, argue that “once a judge deviates from the ratified text, she is making law, rather than following it.”


Hence the conundrum: anti-federal power cases like PrintzAlden, and Seminole Tribe, hailed as correct by most conservative originalists, are based on general structural arguments, not specific constitutional text. Nowhere in the Constitution is there a syllable suggesting Congress cannot commandeer state legislatures, that states can’t be sued by their own citizens in federal court, or that states can’t be sued under federal law in their own courts. Numerous other cases based on structure not text could be added to the list. Shelby County v. Holder articulated an equal state sovereignty principle limiting Congress’ powers under the Reconstruction Amendments, and recently the Court held states couldn’t be sued in the courts of other states. despite an absence of text supporting either result. All of these cases are based on general and contestable structural principles underlying our constitutional system, not the original public meaning of the constitutional text.

And this even sharper point from later on: 

This coming together of originalism and living constitutionalism is reflected in the second major issue originalists must grapple with when defending the Court’s federalism cases striking down legislation based on structure not text. The type of reasoning used by Supreme Court Justices in these cases is, as Colby persuasively points out, indistinguishable from the “penumbras and emanations” rationale of Griswold v. Connecticut. That holding, of course, led to the judicial creation of the controversial right to privacy which formed the basis of Roe v. Wade, the very case which in large part gave rise to the originalist movement, and which is still attacked by most originalists today.

An insightful and challenging critique, both in Professor Colby's article and Professor Segall's post.  I agree in part and disagree in part.  I agree that many of the opinions mentioned are dubious on purely textualist grounds (as I hinted in my Notre Dame Law Review piece on Justice Scalia's originalism) and with my inclinations to textualism they make me uneasy.  (Some I think are more easily defended on textual grounds than others -- see my post here sharply criticizing the Franchise Tax Board v. Hyatt decision).  But I think many of them (not Hyatt!) are defensible on originalist structural reasoning, which I think is very different from living constitutionalism.  Originalist structural reasoning seeks to preserve the structure the framers designed, and thus to preserve their expectations about constitutional government.  Living constitutionalism, especially in the cases Professor Segall cites, reaches results contrary to the framers' expectations and design.


Original Meaning in the the Faithless Electors Case [Updated]
Michael Ramsey

Last week the Tenth Circuit held in Baca v. Colorado Department of State that Colorado could not remove and replace a presidential elector who failed to vote for the candidate winning the most votes for President in Colorado. (This sets up a conflict with the Washington Supreme Court, which held that Washington could fine so-called "faithless" electors -- Lyle Denniston has this analysis at Constitution Daily).  The Baca majority (Judge McHugh for herself and Judge Holmes; Judge Briscoe dissented on mootness) rests heavily on historical textualism, backed up by cites to founding era dictionaries (some footnotes omitted): 

Mr. Baca contends that not only is a role for the state beyond appointment conspicuously absent from the Constitution, but the language used—specifically the terms “elector,” “vote,” and “ballot”—also establishes that no such role exists because presidential electors are granted the constitutional right to exercise discretion when voting for the President and Vice President. In analyzing this contention, we first consider the meanings of those terms as understood at the time of the Constitution’s ratification. Then, we compare the use of “elector” in Article II and the Twelfth Amendment with the use of that term elsewhere in the Constitution.

1) Contemporaneous dictionary definitions

“[T]he enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said.” Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824). Therefore, we look to contemporaneous dictionaries to understand the meanings of the words used in the Constitution.

[Footnote:] For the period of 1750–1800, the following four dictionaries are considered “the most useful and authoritative for the English language”: Samuel Johnson, A Dictionary of the English Language; Nathan Bailey, A Universal Etymological English Dictionary; Thomas Dyche & William Pardon, A New General English Dictionary; and John Ash, The New and Complete Dictionary of the English Language. Scalia & Garner, Reading Law: The Interpretation of Legal Texts 419 (2012). There are four additional dictionaries deemed the most relevant for the period of 1801–1850—dictionaries from 1806, 1818, 1828, and 1850. Id. at 420. Because the Twelfth Amendment was adopted in 1804, the only one of these relevant for our purposes is Noah Webster’s 1806 dictionary, A Compendious Dictionary of the English Language. Id.

Dictionaries from the relevant period support Mr. Baca’s contention that the drafters of the Twelfth Amendment intended electors to exercise discretion in casting their votes for President and Vice President. At the time of the Twelfth Amendment, the term “elector” was defined as “[h]e that has a vote in the choice of any officer,” 1 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785); “[a] chuser,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763); and “[o]ne who chooses, one who has a vote in the choice of any public officer,” 1 John Ash, The New and Complete Dictionary of the English Language (1795); see also Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760) (defining elector as “a person who has a right to elect or choose a person into an office”); Noah Webster, A Compendious Dictionary of the English Language (1806) (defining elector as “one who elects,” and elect as “to choose, select for favor, prefer”).

Similarly, the term “vote” was defined as “[s]uffrage; voice given and numbered,” 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785); “[v]oice, [a]dvice, or [o]pinion of a [m]atter in [d]ebate,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763); “to speak for or in behalf of any person or thing; also to chuse or elect a person into any office, by voting or speaking,” Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760); “[a] suffrage, a voice given and numbered, a determination of parliament”; “to chuse by suffrage; to give by a vote,” 2 John Ash, The New and Complete Dictionary of the English Language (1795); “to give or choose by votes,” and “a voice,” Noah Webster, A Compendious Dictionary of the English Language (1806). Correspondingly, “to vote” was defined as “[t]o chuse by suffrage; to determine by suffrage,” 2 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785), and “to give one’s [v]oice,” Nathan Bailey, A Universal Etymological English Dictionary (London, 1763).

And contemporary sources defined “ballot” as a mechanism for choosing or voting. See 1 Samuel Johnson, A Dictionary of the English Language (London, 6th ed. 1785) (defining “ballot” as “[a] little ball or ticket used in giving votes, being put privately into a box or urn”); id. (defining “to ballot” as “[t]o choose by ballot, that is, by putting little balls or tickets, with particular marks, privately in a box; by counting which, it is known what is the result of the poll, without any discovery by whom each vote was given”); Nathan Bailey, A Universal Etymological English Dictionary (London, 1763) (defining “ballot” as “[a] little ball . . . used in giving of [v]otes”); 1 John Ash, The New and Complete Dictionary of the English Language (1795) (defining “ballot” as “[t]o choose by dropping a little ball or ticket into a box; to choose by holding up the hand”); Thomas Dyche & William Pardon, A New General English Dictionary (11th ed. 1760) (defining “ballot” as “to vote for, or chuse a person into an office, by means of little balls of several colours, which are put into a box privately, according to the inclination of the chuser or voter”); Noah Webster, A Compendious Dictionary of the English Language (1806) (defining “ballot” as “to choose or vote by ballot” and “a little ball, little ticket, chance, lot”).

As these sources reflect, the definitions of elector, vote, and ballot have a common theme: they all imply the right to make a choice or voice an individual opinion. We therefore agree with Mr. Baca that the use of these terms supports a determination that the electors, once appointed, are free to vote as they choose.

2) Use of “elector” in the Constitution

Mr. Baca also points to the use of the word “elector” elsewhere in the Constitution as support for his position that electors may vote freely. This approach is sound because, “[w]hen seeking to discern the meaning of a word in the Constitution, there is no better dictionary than the rest of the Constitution itself.” Ariz. State Legislature, 135 S. Ct. at 2680 (Roberts, C.J., dissenting); see also United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990) (recognizing that when a term, such as “the people,” is being used as “a term of art employed in select parts of the Constitution,” that term should be given the same meaning in each context and contrasted with the use of other terms).

The term “electors” is used in Article I of the federal Constitution. Members of the House of Representatives are “chosen every year by the people of the several states, and the Electors in each state shall have the qualifications requisite for Electors of the most numerous branch of the state legislature.” U.S. Const. art. I, § 2, cl. 1 (emphases added). The term “electors” as used there refers to the citizen voters who choose the persons who will represent them in the House of Representatives.

The term “electors” is also used in the Seventeenth Amendment. Although Senators were “chosen by the legislature” of the state at the time of the founding, id. art. I, § 3, cl. 1, the Seventeenth Amendment now requires Senators be “elected by the people” of the state, id. amend. XVII. As with the House of Representatives, Senate “electors in each state shall have the qualifications requisite for the electors of the most numerous branch of the state legislatures.” Id. (emphases added).

It is beyond dispute that the “electors” under Article I, Section 2, Clause 1, and the Seventeenth Amendment exercise unfettered discretion in casting their vote at the ballot box.28 It is a “‘fundamental principle of our representative democracy,’ embodied in the Constitution, that ‘the people should choose whom they please to govern them.’” U.S. Term Limits, 514 U.S. at 783 (quoting Powell v. McCormack, 395 U.S. 486, 547 (1969)). “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and the restrictions on that right strike at the heart of representative government.” Reynolds v. Sims, 377 U.S. 533, 555 (1964) (emphasis added). “Not only can th[e] right to vote [provided by Article I, Section 2] not be denied outright, it cannot, consistently with Article I, be destroyed by the alteration of ballots or diluted by stuffing of the ballot box.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964) (citation omitted).

The freedom of choice we ascribe to congressional electors comports with the contemporaneous dictionary definitions of elector discussed above. And because we treat usage of a term consistently throughout the Constitution, Verdugo-Urquidez, 494 U.S. at 265, the use of elector to describe both congressional and presidential electors lends significant support to our conclusion that the text of the Twelfth Amendment does not allow states to remove an elector and strike his vote for failing to honor a pledge to vote for the winner of the popular election. Instead, the Twelfth Amendment provides presidential electors the constitutional right to vote for the candidates of their choice for President and Vice President.

That's a lot of dictionary cites!  I think it's a plausible conclusion.  Rob Natelson, whose analyses I always find helpful and usually find persuasive, made a similar originalist argument against the Colorado law back in 2016: Presidential Elector Discretion: The Originalist Evidence.  See also this post (also from 2016) by Mike Rappaport, reaching the same conclusion.(To be clear, I think this is a different question from whether electors are constitutionally obligated to vote their personal preferences (see my discussion here)).

Derek Muller questions some other aspects of the courts' opinion here (at Excess of Democracy).  Noah Feldman argues against it, largely on nonoriginlist grounds, here.

It seems likely that the Supreme Court will take up the issue.  Professor Muller thinks that the mootness argument in Baca might be persuasive.  But the Washington case isn't moot in any event (since it upheld fines against the faithless electors) so that might be the way the issue gets to the Court.  Lyle Denniston reports that  "[w]ith the Tenth Circuit’s ruling now out, and with its creation of a direct split with the ruling in May by the Washington Supreme Court, Professor Lessig [the electors' counsel in the Washington case] presumably will be filing his appeal shortly in the Washington case."

UPDATE:  David Post discusses the case at Volokh Conspiracy: The Return of the Faithless Elector.  It's a good discussion but I disagree with this passage:

But let us imagine the unimaginable—a useful thought experiment, especially, I would think, for adherents to the "original meaning" of the Constitution.  What if we actually ran our presidential elections as the Framers intended—i.e., what if we committed the decision of who would become our president to this group of 538 people, each of whom had been elected by voters in one of the States for the sole purpose of choosing, freely, the candidate they believed best suited to the office?

I take it that a strict originalist would say: that was what the Framers intended, and the Constitution has not been modified so as to alter that structure, so … Yes, that is precisely what the Constitution requires.

Nope.  For public meaning originalists (the predominant view among modern originalists), the question is not what the framers intended but what the text they wrote requires.  As I've discussed in the post linked above, I don't think the text prohibits electors from pledging to vote in a certain way in order to be selected (though it may prohibit states from punishing them if they break that pledge). 


More from Neal Goldfarb on Corpus Linguistics and the Second Amendment
Michael Ramsey

At LAWnLinguistics, Neal Goldfarb has posted the final installment in his series on corpus linguistics and the Second Amendment.  Here is the introduction: 

This post will complete my analysis of the Second Amendment—for now. So far, I’ve focused almost entirely on the Second Amendment’s specification of the right that it protected—the right of the people, to keep and bear Arms—and have said little or nothing about well regulated or militia. That doesn’t mean I have nothing to say about those expressions, it just means that I’ll defer that discussion until sometime in the future.

Meanwhile, here in the present, this post will try to answer the question that I raised in the last post: whether the Supreme Court was right in saying that the fact that bear arms appears in the phrase keep and bear arms means that bear arms couldn’t have been used in its idiomatic military sense:

[If bear arms were given its idiomatic meaning,] the phrase “keep and bear arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.” Grotesque.

It’s true that interpreting bear arms as having been used idiomatically would mean that arms conveys two different meanings (a phenomenon known as copredication). But as explained in my last post, that doesn’t rule out such an interpretation. Now, in this post, I’ll argue that interpreting bear arms in that way is more than just a theoretical possibility. I’ll discuss evidence that makes it reasonable to think keep and bear arms was intended to convey such a meaning, and that such an interpretation would have been more likely than the alternative. ...

This page explains the project and has links to prior posts.  It's an extraordinarily insightful and challenging project.


Jay Schweikert on Originalism and Qualified Immunity
Michael Ramsey

A Cato-at-Liberty, Jay Schweikert: Dissenters in Fifth Circuit Qualified Immunity Case Misunderstand the Relationship between “Originalism” and Section 1983 (commenting on the dissent in Cole v. Hunter highlighted here).  From the introduction:

Perhaps sensing that the tide is turning against qualified immunity, Judges Ho and Oldman – both Trump appointees themselves – wrote separately [in Cole v. Hunter] to respond to the general idea that qualified immunity should be reconsidered. ...

[In their view], qualified immunity may well lack any plausible textual or historical basis. But because, say Judges Ho and Oldham, the Supreme Court erroneously expanded the reach of Section 1983 in Monroe v. Pape (by holding that state officials could be sued even when they were acting contrary to a state’s own laws), then two wrongs make a right, and we should just keep qualified immunity as is, as a kind of compensating error. Indeed, they conclude this section of the opinion by saying: “If we’re not going to do it right, then perhaps we shouldn’t do it at all” – with “it” here meaning, actually interpret statutes as written.

Lest this argument seem like an abstruse, academic rejoinder, I can personally attest, having now participated in or observed several debates on qualified immunity, that this is the most frequently and fervently raised rebuttal to the otherwise insurmountable assertion that modern qualified immunity lacks any plausible historical basis. But despite its veneer of reasonableness, this “two wrongs make a right” argument is so deeply, fundamentally flawed, on so many levels, that it’s worth spelling out each of them in detail ...

And from further along, on Monroe v. Pape

Judges Ho and Oldman (and Justice Scalia, in his Crawford-El opinion) seem to take it as a given that Monroe v. Pape was wrongly decided, which is what gives them justification to accept the obvious (but in their view, counter-balancing) errors with qualified immunity itself. But that assumption simply isn’t justified – indeed, there’s a very good originalist argument that Monroe was, in fact, correctly decided, which of course would entirely negate this “two wrongs make a right” defense of qualified immunity. To restate Justice Scalia’s (and by extension, Judges Ho and Oldman’s) criticism of Monroe: The text of Section 1983 creates liability for those who act “under color of any statute, ordinance, regulation, custom, or usage of any State.” Thus, in Justice Scalia’s view, a state official can only be liable under Section 1983 if they were, in fact, acting in accordance with state law. Therefore, by holding that state officials could be liable even when their actions were not authorized by state law, the Monroe Court massively expanded liability under Section 1983, in contravention of the statutory language.

Though superficially plausible, the problem with this argument is that it glosses over the meaning of the phrase “under color of.” After all, the statute could have been written to cover violations committed “in accordance with any statute, ordinance, regulation, custom, or usage, of any State.” If that were what the statute said, Justice Scalia’s criticism of Monroe would be well taken. But, as a historical, originalist matter, that is simply not what the phrase “under color of” means. To the contrary, this phrase is actually a longstanding term-of-art which was well understood to encompass false claims to authority. As detailed by Steven Winter in an article on exactly this subject, the use of this phrase goes back more than 500 years, to an English bail bond statute that voided obligations taken by sheriffs “by colour of their offices,” if they failed to comply with statutory requirements. In other words, it encompassed illegal acts by government agents who abused or exceeded their statutory authority – which is exactly the sort of unlawful conduct recognized by Monroe. Therefore, contra Justice Scalia’s suggestion in Crawford-El, a faithfully originalist understanding of Section 1983 would seem to support the result in Monroe. And if that’s the case, then obviously the whole “two wrongs make a right” theory collapses.


Judge Eric Murphy on Denying Equal Protection
Michael Ramsey

Judge Eric Murphy, concurring in the recent Sixth Circuit case Estate of Romain v. City of Grosse Pointe Farms, argues that claims that the police failed to give adequate protection should be understood as equal protection claims, not substantive due process claims (and citing, among other authorities, originalist scholars John Harrison and Christopher Green): 

At first blush, the Equal Protection Clause’s text—barring the State from “deny[ing] to any person . . . the equal protection of the laws,” U.S. Const. amend. XIV, § 1—may provide a more plausible textual hook than the Due Process Clause for claims that the police intentionally denied a specific person (a so-called “class of one”) the protection of the criminal laws that everyone else enjoys. Indeed, while it is now well-established that the Equal Protection Clause provides a general antidiscrimination mandate for all state acts, Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam), some commentators have cited historical materials suggesting that remedial laws (like the laws implicated here) fall within the center of the “protection of the laws,” see John Harrison, Reconstructing the Privileges or Immunities Clause, 101 Yale L.J. 1385, 1435–36 (1992) (citing 1 W. Blackstone, Commentaries *55–56). These protective laws stand in contrast to, say, public-employment decisions in which “the government acts in a more proprietorial and less regulatory capacity.” SECSYS, LLC v. Vigil, 666 F.3d 678, 690 (10th Cir. 2012) (opinion of Gorsuch, J.) (discussing Engquist v Ore. Dep’t of Ag., 553 U.S. 591 (2012)).

History supports this instinct too. “[T]he suppression of private violence [was] the core concern of the Equal Protection Clause.” Christopher R. Green, The Original Sense of the (Equal) Protection Clause: Subsequent Interpretation and Application, 19 Geo. Mason U. C.R. L.J. 219, 254 (2009). “The unwillingness of the law enforcement authorities in southern states to protect the newly freed blacks from white vigilante groups such as the Ku Klux Klan was an important motive for the enactment of the equal protection clause.” Del Marcelle v. Brown Cty. Corp., 680 F.3d 887, 889 (7th Cir. 2012) (en banc) (opinion of Posner, J.). For example, Congress enacted the 1866 Civil Rights Act to give “nonwhites ‘full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.’” David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789-1888, at 349 (1985) (quoting Act of Apr. 9, 1866, § 1, 14 Stat. 27, 27). And the framers enacted the Fourteenth Amendment to ensure this act’s constitutionality. Id. at 347–49. To be sure, the Equal Protection Clause’s primary target may have been racially discriminatory refusals to protect persons from private violence. Id. at 349. But, whatever its purpose, the Equal Protection Clause’s text is not limited to race-based denials of the protection of the laws. Cf. District of Columbia v. Heller, 554 U.S. 570, 577–78 (2008); Crawford v. Washington, 541 U.S. 36, 61–62 (2004).

The Equal Protection Clause’s text and history suggest that the right question to ask is: When, if ever, do equal-protection principles give a specific individual the right to challenge a state officer’s intentional refusal to provide the protection of the laws that keep the public safe from private violence? Figuring out the right question is the easy part; determining the appropriate answer is much harder. ...

(Via How Appealing.)


Legal Theory Lexicon: Originalism
Michael Ramsey

At Legal Theory Blog, Larry Solum has updated his entry in the "Legal Theory Lexicon" for "Originalism." Here are some excerpts.  From the introduction: 

There are many different theories of constitutional interpretation, but the most controversial and also perhaps the most influential is "originalism."  Originalism is actually a family of constitutional theories, but two ideas are common to almost all versions of originalism.  The first idea is that the meaning of the constitutional text is fixed: the linguistic meaning of the words and phrases does not change over time.  The second idea is that the original meaning of the constitutional text is binding: judges and officials should consider themselves constrained by the text.

On the origins of originalism and the "New Originalism":

No one scholar or judge deserves credit for originalism as a movement in constitutional theory and practice, but in my opinion one of the crucial events in the originalist revival was the publication of Raoul Berger's book, Government by Judiciary in 1977 by Harvard University Press. As you can guess from the title, Berger's book was very critical of the Warren Court (and its aftermath in the 70s). One of the key responses to Berger was the publication of The Misconceived Quest for the Original Understanding by Paul Brest in 1980. Brest's article initiated an intense theoretical debate over the merits of originalism that continues today. The landscape changed again in the late 1980s, when Justice Antonin Scalia suggested that originalists should shift their attention from "the original intentions of the framers" to the "public meaning of the constitutional text" or "original meaning."

... [O]ne last set of developments is particularly important. In the 70s and early 80s, originalism was strongly associated with conservative judicial politics and conservative legal scholars. But in the late 1980s and in the 1990s, this began to change. One of the important moves was the shift from "original intentions" to "original public meaning," but two other developments were key. First, Bruce Ackerman's work on constitutional history suggested the availability of "left originalism" that maintained the commitment to the constitutional will of "We the People" but argued that the constitution included a New Deal constitutional moment that legitimated the legacy of the Warren Court. (Ackerman does not call himself an "originalist," but many of Ackerman's former students do work that is implicitly or explicitly originalist.)  Second, Randy Barnett (the leading figure in libertarian legal theory) embraced originalism in an influential article entitled An Originalism for Nonoriginalists.  The most recent development in this dynamic is Jack Balkin's attempt to reconcile originalism with living constitutionalism.  Balkin's article, "Abortion and Original Meaning" (link provided below) elicited a good deal of commentary and criticism: his recent book, Living Originalism, further develops his take on originalist theory and applies it to a variety of topics.

And on "original public meaning":

The original-meaning version of originalism emphasizes the meaning that the Constitution (or its amendments) would have had to the relevant audience at the time of its adoptions. How would the Constitution of 1789 have been understood by an ordinary adult citizen at the time it was adopted? Of course, the same sources that are relevant to original intent are relevant to original meaning. So, for example, the debates at the Constitutional Convention in Philadelphia may shed light on the question how the Constitution produced by the Convention would have been understood by those who did not participate in the secret deliberations of the drafters. But for original-meaning originalists, other sources become of paramount importance. The ratification debates and Federalist Papers can be supplemented by evidence of ordinary usage and by the constructions placed on the Constitution by the political branches and the states in the early years after its adoption. The turn to original meaning made originalism a stronger theory and vitiated many of the powerful objections that had been made against original-intentions originalism.

This sets the stage for what is sometimes called “the New Originalism”  and also is called “Original Meaning Originalism.”   Whatever the actual origins of this theory, the conventional story identifies Antonin Scalia as having a key role.  As early as 1986, Scalia gave a speech exhorting originalists to “change the label from the Doctrine of Original Intent to the Doctrine of Original Meaning.”   The phrase “original public meaning” seems to have entered into the contemporary theoretical debates in the work of Gary Lawson  with Steven Calabresi as another “early adopter.”   The core idea of the revised theory is that the original meaning of the constitution is the original public meaning of the constitutional text.

Randy Barnett  and Keith Whittington  have played prominent roles in the development of the “New Originalism.”  Both Barnett and Whittington build their theories on a foundation of “original public meaning,” but they extend the moves made by Scalia and Lawson in a variety of interesting ways.  For the purposes of this very brief survey, perhaps their most important move is to embrace the distinction between “constitutional interpretation” understood as the enterprise of discerning the semantic content of the constitution and “constitutional construction,” which we might tentatively define as the activity of further specifying constitutional rules when the original public meaning of the text is vague (or underdeterminate for some other reason).  This distinction explicitly acknowledges what we might call “the fact of constitutional underdeterminacy.”   With this turn, original-meaning originalist explicitly embrace the idea that the original public meaning of the text “runs out” and hence that constitutional interpretation must be supplemented by constitutional construction, the results of which must be guided by something other than the semantic content of the constitutional text. ...


John McGinnis on Silent Originalism
Michael Ramsey

At Law and Liberty, John McGinnis:  Silent Originalism and the Reweighting of Precedent.  From the introduction: 

The most important practical question of originalism is how to deal with the huge number of non-originalist precedents. In its June decision in Rucho v. Common Cause, the Supreme Court showed one way: Refuse to give a flagrantly non-originalist precedent generative force while not overruling it or discussing it in any detail.

A five-member majority held in Rucho that political gerrymanders presented political questions that the Court would not disturb. Its majority reached the right result, although not as forthrightly as might be desired. There is no reason to raise the “political question” doctrine, since the federal constitutional case against gerrymander founders so clearly on the merits. The Fourteenth Amendment does not prevent states from imposing such gerrymanders. Indeed, as an original matter, the Fourteenth Amendment does not justify the Court’s “one-person, one-vote” decision in Reynolds v. Sims (1963), from which a decision prohibiting gerrymanders would have been an extension. Nevertheless, the gross legal infirmity of the reasoning in Reynolds was a silent factor influencing the Court’s Rucho decision.

Reynolds v. Sims, a Consciously Anti-Originalist Opinion

The original meaning of the Equal Protection Clause of the Fourteenth Amendment does not provide a rule of “one person, one vote”; indeed, it does not guarantee an individual right to vote at all. (The Guarantee Clause requires that states must provide a republican form of government, but at the Founding, republicanism was consistent with substantial restrictions on franchises for particular classes of individuals.) This reading is not a difficult or close one, but follows from the text of the amendment itself, the statements of its sponsors, and a subsequent amendment to the Constitution. ...

As a result:

It impossible to believe that any of the five justices in the majority of the Rucho Court would endorse the reasoning in Reynolds. While they did not overrule the latter, they refused to give it any generative force. They declined to extend the proposition that a citizen’s vote must not be diluted by formally unequal districts, to the proposition that it must not be diluted by effectively partisan districts.

And in conclusion: 

Rucho v. Common Cause provides an example of “silent originalism.” The Court does not revisit and overrule a precedent due to its inconsistency with originalism, but the precedent’s manifest inconsistency robs it of generative force. This decision shows that those who, like Professor David Strauss, consider constitutional law to be an essentially common law exercise in applying the Court’s own precedents rather than following the original meaning of the Constitution, miss something important. The strength of precedents depends on underlying theories about how the Constitution is to be interpreted. The rise of originalism is dramatically changing the weights that the Court gives to its precedents. And that reweighting can have the important effect seen in Rucho.

Agreed and endorsed.  I have some related thoughts from a while back in connection with the original meaning and modern application of the supremacy clause: The Supremacy Clause, Original Meaning, and Modern Law (arguing that it is possible to contain non-originalist precedents to their facts and basic implications without disrupting the coherence of modern law).


Josh Blackman on Originalism in the Fifth Circult
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Fifth Circuit Divides on Qualified Immunity, and Originalism.  From the introduction:

Today the Fifth Circuit issued a divided en banc decision in Cole v. Hunter. The case considered whether two police officers who shot the Plaintiff were not entitled to qualified immunity. Nine out the sixteen active judges on the en banc court found that qualified immunity was not warranted. (Two senior judges who were on the original panel joined the majority.) Judges Ho and Oldham wrote a joint dissent, which was joined by Judge Smith (see pp. 54-64). Their decision warrants a careful study. It considers how lower court judges should, and should not be originalists.

First, the duo notes that modern qualified immunity doctrine has been criticized as "ahistorical and contrary to the Founders' Constitution." They cite Will Baude's article in the California Law Review, as well as a rejoinder from Aaron Nielson and Chris Walker.

Ho and Oldham, as lower-court judges, see no role in this debate:

As originalists, we welcome the discussion. But separate and apart from the fact that we are bound as a lower court to follow Supreme Court precedent, a principled commitment to originalism provides no basis for subjecting these officers to trial.

Second, Ho and Oldham highlight an important reason why originalism has gained so much salience in debates about criminal justice: it often operates as a one-way ratchet to help the accused, but not the police. Originalists on the right, and non-originalists on the left, are all-to-happy to form an alliance that advances these civil libertarian ends. Indeed, progressive groups have begun to craft "Gorsuch briefs" to peel off conservative votes on textualist grounds. ...

Plus much more, including a response from Judge Don Willett and a counter-response from Judges Ho and Oldham.

In conclusion: 

For some time, originalism existed primarily in the academy, and occasionally on the Supreme Court. No longer. As the number of originalist judges on the circuit courts continues to grow, these sorts of debates will occur with increasing frequency. I welcome these discussions, which I [that is, Professor Blackman] discuss in my new essay, Originalism and Stare Decisis in the Lower Courts.