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27 posts from August 2019

08/25/2019

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.)

08/24/2019

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. ...

08/23/2019

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).

08/22/2019

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.

08/21/2019

Matthew Steilen: The Constitutional Convention and Constitutional Change
Michael Ramsey

Matthew J. Steilen (State University of New York (SUNY) at Buffalo, Law School) has posted The Constitutional Convention and Constitutional Change: A Revisionist History (Lewis & Clark Law Review, forthcoming) (65 pages) on SSRN.  Here is the abstract: 

How do we change the federal Constitution? Article V tells us that we can amend the Constitution by calling a national convention to propose changes, and then ratifying those proposals in state conventions. Conventions play this role because they represent the people in their sovereign capacity, as we learn when we read McCulloch v. Maryland. 

Nearly everyone would agree, however, that most constitutional change is not formal constitutional change under Article V, but informal change — change by interpreting the Constitution, altering the workings of government, or even changing political practices. Because courts, executive agencies, and political parties do not represent the people the way conventions do, these mechanisms are sometimes said to be anti-democratic or even illegitimate methods of change. Yet they are dominant nonetheless. 

What is not often discussed is that Article V itself contains another mechanism for constitutional change. In fact, Article V permits both conventions and legislatures to be used for amendment, and, as it happens, all but one of the twenty-seven amendments to the Constitution have been made by legislatures. If conventions alone represent the people in their sovereign capacity, then why don’t we actually use them to change the federal Constitution? Are we to conclude that most of the amendments are in some way defective? 

To show why Article V might have permitted the use of legislatures to amend the Constitution, this paper examines a series of political texts on the convention, written between the seventeenth and eighteenth centuries. Writers in this line defended the power of Parliament or the American colonial assemblies to alter the frame of government. From their point of view, the people could be present in the legislature, and when they were, the legislature could establish fundamental law. 

This perspective helps to explain the rightful place of informal constitutional change in our system. The people can be represented by the institutions of government itself, and when they are, those institutions can claim an authority to alter the constitution. In this sense, the popular sovereignty described in McCulloch is dynamic: it can be present in different institutions at different times. Presidents have repeatedly claimed just this authority. From the perspective of the writers examined here, the legislature could too. It was when corruption stopped up legislative routes of popular constitutional change that the people could move outside government entirely, to a convention, where they might alter the constitution to better secure their property and liberty. 

The history set out here directly challenges the orthodox historical account, based largely on the work of Gordon Wood, that has dominated the legal academy for nearly 50 years. It focuses on the same key state — Pennsylvania — and argues in detail that Wood’s interpretation of the use of the convention there is incorrect. The paper emphasizes political context rather than ideology, and in so doing offers a more nuanced, and more realistic, view of the place of the convention in American constitutional change.

Via Larry Solum at Legal Theory Blog, where it is "Download of the Week" and "Highly Recommended."

08/20/2019

Corpus Linguistics and 2nd Amendment
David Weisberg

I agree completely with Neil Goldfarb’s conclusion that Heller was wrongly decided.  (My own reasoning is set forth in a paper, “A Unique, Stand-Alone Second Amendment Implies That Both Heller and McDonald Were Wrongly Decided,” available here on SSRN.) Nevertheless, I just as strongly disagree with his interpretation, based on corpus linguistics (“CL”), of the meaning of the Second Amendment.

Mr. Goldfarb’s Supreme Court brief asserts (at p. i) that CL “provides compelling reason to believe” that the Second Amendment was originally understood to protect “the right to serve in the militia, not a right of individual self-defense.”  The brief also states: “In light of that evidence [provided by CL], it is reasonable to conclude that the right to bear arms that the Second Amendment protects is a right that doesn’t merely relate to military service, but rather consists of the right to serve in the militia.” (p. 4, italics in original.)  

Thus, it seems fair to say that, from Mr. Goldfarb’s perspective, a proper CL interpretation of the Second Amendment’s original meaning would probably be: “The right of the people to serve in the well regulated Militia of a State, shall not be infringed.” 

The CL formulation raises two questions: one obvious, and one more subtle.  The obvious question: If that is what the framers meant, why isn’t that what they wrote?  They would have used 19 words (all of which are used in the actual amendment) rather than 27, and expressed themselves much more precisely to boot.  And the prefatory clause, which (as Justice Scalia noted) is unique to the Second Amendment, is rendered redundant and superfluous.  That the actual Second Amendment is very different from the CL interpretation suggests that that interpretation is a misinterpretation.

The more subtle question: Why is there a stand-alone Second Amendment at all?  If the CL interpretation is correct, the First  Amendment could have been drafted thusly:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances; or infringing the right of the people to serve in the well regulated Militia of a State.

This formulation encompasses only 17 words, and the Bill of Rights would be condensed from ten amendments to nine.  So, why wasn’t the First Amendment framed in that way? 

The answer, in a tiny nutshell, is that the scope of “the right of the people to keep and bear arms” that is protected from federal infringement by the Second Amendment—and by “scope” I mean, e.g., whether or not the right is limited to keeping and bearing arms for service in the militia, or also includes self-defense, or also hunting, or also target practice, or etc.—is determined by each State’s law.  That is why the reference in the prefatory clause to “a free State” is important.  In contrast, the scope of each of the rights protected by the First Amendment (and also the rights protected in the Third thru Eighth Amendments) is not determined by any State’s law.  That difference makes it impossible to meld the Second into the First.

I think CL could never provide a satisfactory answer to either of the two questions I’ve highlighted.  I also believe that the key to a correct interpretation of the Second Amendment is an understanding of why it has the prefatory clause it has, and why the amendment as a whole stands alone.  That's why I think CL will never yield a correct interpretation of the Second.

Nelson Lund: The Destructive Legacy of McCulloch v. Maryland
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted The Destructive Legacy of McCulloch v. Maryland (McCulloch v. Maryland at 200, Gary J. Schmitt, ed. (forthcoming)) (36 pages). Here is the abstract:

McCulloch v. Maryland is probably the Supreme Court’s single most influential opinion, and certainly one of its most celebrated. As countless commentators have recognized, McCulloch’s importance arises from its doctrine of implied congressional powers, which has been applied even to constitutional amendments adopted decades after the McCulloch decision itself. Revered though it may now be, Chief Justice Marshall’s opinion provoked a hostile commotion when it was issued. So much so that he was moved to defend it in a series of anonymous newspaper essays. The opinion remained controversial for many years, and it deserves to become controversial once again.

Like Marshall, all of the current Justices can say that the abstract principle of limited and enumerated powers is “now universally admitted.” But the legacy of his opinion has been the effective destruction of that principle. McCulloch famously proclaimed that “we must never forget, that it is a constitution we are expounding.” This sonorous aphorism is frequently, if unnecessarily and improperly, taken to mean that it is merely a constitution, which judges are free (or obligated!) to amend under the guise of interpretation. That attitude has triumphed historically, and perhaps irrevocably. Constitutional law is widely regarded now as a branch of political philosophy or as a field on which to play junior varsity statesmanship. Or, not infrequently, as an arena for flamboyant moral posturing or as a weapon of partisan warfare.

Rather than submissively celebrate these developments, we could choose to stop forgetting that the Constitution was originally meant to be a law, and that it was meant to be more authoritative than what the Supreme Court says about it. If we did, McCulloch and its rank progeny would become controversial once again.

08/19/2019

The Original Meaning of Section I of Amendment XIV All in One Blog Post
Andrew Hyman

A primary purpose of Section One of the Fourteenth Amendment was to entrench, or establish a firmer constitutional basis for, various provisions in the Civil Rights Act of 1866.  The Citizenship Clause of the Fourteenth Amendment was modeled after the citizenship clause in the Civil Rights Act of 1866.  The framers of that statutory citizenship clause had worried that rights associated with statutory citizenship would be vague unless specified, and so they did specify them explicitly in that Act.  However, when it came time to write the Fourteenth Amendment later in 1866, those same legislators did not need to specify any rights of citizenship in the Fourteenth Amendment, because the whole-text canon of interpretation (described by the Eighth Circuit here) ensured that such specification of legal rights was already included elsewhere in the Constitution.  It is true that those older constitutional rights did not include all of the equality rights specified in the Civil Rights Act of 1866, but the Equal Protection Clause of the Fourteenth Amendment is broad enough to encompass every one of the equality rights listed in that Act; after all, the Act’s full title was “An Act to protect all Persons in the United States in their Civil Rights and liberties, and furnish the Means of their Vindication” (emphasis added).

With passage of the Fourteenth Amendment, the Citizenship Clause gave the freed slaves (and all other covered persons) benefit of every legal right that was already conferred by the federal Constitution upon white citizens, and Congress had probably never before the Fourteenth Amendment even attempted to define U.S. citizenship where it explicitly was mentioned in the Constitution (i.e. in the clauses regarding eligibility for federal office).  The Equal Protection Clause ensured that the freed slaves could also benefit from the equality rights specified in the Civil Rights Act of 1866.

The Equal Protection Clause has been correctly interpreted to extend way beyond matters of race (the clause does not mention race) but has been incorrectly interpreted in a way that shuts out Congress which was not the clause’s original meaning.  As Jonathan Mitchell (at pp. 1285-86) and myself (at p. 81) have both emphasized, the clause requires a state to provide equal protection “of the laws” rather than merely “of its laws,” and so federal statutes were meant to play a substantive role, alongside the judicial role of ensuring that Congress does not exceed its bounds.  If and when Congress does nothing under this clause, then a state is merely required to provide whatever meager equal protection its own laws may require, but Congress has implied power to ensure that whatever protection a state provides is provided equally.  Unfortunately, judges have written out the last three words of the clause, as Judge Jack Weinstein once inadvertently explained: “The Fourteenth Amendment to the United States Constitution provides that no state may deny equal protection to any person within its jurisdiction.”

As for the Privileges orImmunities Clause written in 1866, it simply gave to all U.S. citizens a guarantee that the rights conferred by the Citizenship Clause would bind the states, and not just the federal government.  In other words, the Citizenship Clause already implicitly guaranteed that the federal government would give people who are entitled to U.S. citizenship the "privileges or immunities of citizens of the United States," and the message of the next clause is simply that states must give them as well.  Unfortunately, the U.S. Supreme Court eventually construed this to mean that states must respect free speech only insofar as federal politics are being discussed, and must respect gun rights only insofar as the guns are used to carry out federal citizenship responsibilities, et cetera.  Taken to its logical conclusion, you may pray so long as you are praying for your federal government.  That absurd sort of limitation on Bill of Rights freedoms has no basis in anything anyone ever said during the period from 1866 to 1868 when the Fourteenth Amendment was drafted and ratified.

One occasionally hears that the Privileges or Immunities Clause does not include constitutional rights of persons, but by 1866 it was well-settled that the analogous Privileges and Immunities Clause of Article IV (sometimes called the Comity Clause) entitled visiting citizens from out-of-state to all fundamental rights of in-state citizens, without subtracting fundamental rights of in-state residents who were not citizens.  One also sometimes hears that the Privileges or Immunities Clause includes the vast array of unenumerated federal constitutional rights that citizens enjoy vis-à-vis the federal government in every state because of the limited nature of federal power, but actually those rights (and also certain enumerated constitutional rights that only apply within the states) are not enjoyed vis-à-vis the federal government in areas of plenary federal power such as the District of Columbia, and so they cannot be among the privileges or immunities of citizens of the United States.  Further, one sometimes hears that the Privileges or Immunities Clause includes a right to travel, but actually the Citizenship Clause (in particular its grant of state citizenship) reinforces the Comity Clause which grants to citizens visiting from out-of-state the same rights of ingress and egress as in-state citizens enjoy.  Notice that the Comity Clause does not apply to places like the District of Columbia, so it is not a nationwide federal legal right, and therefore is not a privilege or immunity of citizens of the United States; this clause was on shaky ground after the U.S. Supreme Court suggested in Kentucky v. Dennison (1861) that a state's compliance with Article IV may sometimes be optional, but the ability of Congress to enforce this clause was assured by Section 5 of the Fourteenth Amendment in conjunction with the Citizenship Clause’s grant of state citizenship (which impliedly includes the legal rights of state citizenship already contained in the whole text of the Constitution).

Finally, this brings us to the Due Process Clause, which of course replicated a clause in the Fifth Amendment.  That clause of the Fifth Amendment was obviously not incorporated against the states in 1868 via the Privileges or Immunities Clause as to non-citizens, and even as to citizens the Privileges or Immunities Clause did not prevent states from violating Bill of Rights liberties by methods other than making or enforcing laws.  That explains why the Due Process Clause was added, but does not explain what it means, which is a relatively easy mystery to solve.  

Originally, in England where this clause originated, “due process of law” meant judicial proceedings that are owed according to the law of the land, i.e. according to common law, customary law, or statute law (which was supreme).  But there were some misunderstandings about this subject in America during the Confederation period, and it came to be accepted that “due process” also meant judicial “procedures” (a narrower concept than judicial “proceedings” which may include substantive decisions) that are owed according to principles of liberty and justice (a broader concept than principles embodied in the law of the land).  The old English meaning and the newer American meaning both became accepted by the U.S. Supreme Court prior to the Civil War (instead of the word “procedure” the Court used the equivalent term “modes of proceeding”), but neither the Supreme Court nor the larger legal community as of 1866 predominantly accepted the hybrid notion pushed by some libertarians and state judges that “due process” should also mean substantive judicial proceedings that are owed according to principles of liberty and justice.  That latter hybrid notion, which is at once broader than the old English rule-of-law meaning and also broader than the procedural American meaning, ultimately caught on decades after the Fourteenth Amendment was adopted.  We are presently suffering with that hybrid doctrine (sometimes called “substantive due process”), and the judicial supremacy it implies, not only because of the gutting of the Privileges or Immunities Clause, but also because of either a mistaken belief that Chief Justice Taney employed such a doctrine in the infamous antebellum case of Dred Scott v. Sandford (1857), or because of a mistaken belief that Taney's alleged use of that doctrine should now be emulated.

Charles Barzun: Constructing Originalism (with Comments from Will Foster)
Michael Ramsey

I was going to give the Baude/Sachs thesis a rest for a while, but...

Charles L. Barzun (University of Virginia School of Law) has posted Constructing Originalism or: Why Professors Baude and Sachs Should Learn to Stop Worrying and Love Ronald Dworkin (19 pages) on SSRN.  Here is the abstract: 

This Essay responds to Professors William Baude and Stephen Sachs’s recent article, Grounding Originalism, in which they offer replies to various criticisms I and others have made of the so-called “positive turn” in constitutional originalism. I argue that their replies still fail to address the core underlying problems plaguing their attempt to “ground” originalism in the legal positivism of H.L.A. Hart. In fact, their somewhat creative interpretation of Hart’s theory demonstrates even more clearly than did their earlier work that their true jurisprudential ally is the anti-positivist Ronald Dworkin.

Thanks to Will Foster for the pointer.  He comments: 

Prof. Barzun suggests in Part II of this fascinating paper that judges do not practice original-law originalism because "courts [do not] explicitly or implicitly demand (even if only indirectly)" that "constitutional and interpretive rules and methods trace their pedigree back to the founding" (p. 4). Barzun thinks many (although perhaps not all) judges "would not care much at all" if it turned out that "the customary features of an area of law developed slowly throughout the nineteenth century" and had no Founding-era pedigree (p. 7). I am not sure that is correct, and the following (admittedly fanciful) thought experiment shows the reason for my skepticism. Let's suppose the original Constitution of 1787 contained the following clause: "Nay Judgeth shalt maketh useth of any Precedent in any Opinion on a constitutional Questioneth." (I use hilariously archaic language here in order to make sure original meaning, and not modern meaning, is doing the work in the hypothetical.) Let's assume there are several dozen extant Founding-era writings from notable figures showing that this clause was understood to ban judges from relying on case precedents when construing constitutional provisions. Now, if stare decisis somehow managed to "develop[] slowly" over time among many judges, I find it hard to believe that "a good many [people] would not care much at all" (p. 7). I think virtually everyone would see stare decisis as an unlawful usurpation, precisely because most people would see that it contradicted the original meaning of the constitutional text. If people wanted to preserve the use of precedent in constitutional cases, they would advocate for an Article V amendment. 
 
Perhaps I am wrong about this. But if I'm right, then it seems Barzun's argument is weakened. In my view, the apparent strength of Barzun's argument in Part II of the paper comes from smuggling in the epistemic difficulties inherent in becoming convinced that some feature was or was not part of the Founders' law. It's often really, really hard to get people to change their deeply held beliefs, and that applies no less in the constitutional context than anywhere else. But that is not inconsistent with the further proposition that, if and when someone does change their beliefs about the content of the Founders' law, they will change their views about the propriety of current judicial doctrine. (It's worth noting that there are at least some real-world examples of people changing their constitutional beliefs due to new historical evidence -- just look at the Second Amendment, which even some liberal professors began to embrace as an individual right in the late 20th century.) 
 
Barzun's article also contains some more technical discussion of H.L.A. Hart's positivist philosophy. Interestingly, Barzun interprets Baude and Sachs as conceptualizing original-law originalism as a subordinate legal rule, and not "itself part of our rule of recognition at all" (p. 7). I confess I had always thought original-law originalism was itself the rule of recognition under Baude and Sachs' theory. Barzun, however, thinks Baude and Sachs believe "the rule of recognition in the US is what Baude and Sachs call 'the official story' of American law, which includes things like 'We treat the Constitution as a legal text, originally enacted in the late eighteenth century'" (p. 7). Yet, as Baude and Sachs state in their "Grounding Originalism" abstract, "our system’s official story is that we follow the law of the Founding, plus all lawful changes made since." The official story, in other words, is that we practice original-law originalism. (The fact that we treat the Constitution as an 18th-century legal text serves, along with various other facts, as evidence that establishes the official story of original-law originalism.) And I think legal officials do seem to treat original-law originalism as the rule of recognition, even if they often apply this rule incorrectly. 
 
Finally, Barzun includes some fascinating discussion of positive law in Nazi Germany, and also makes the provocative claim that Baude and Sachs' theory shares more of an affinity with Dworkin than Hart. Although I do have some thoughts on these matters, I will leave it to Baude and Sachs to respond, as I suspect they will do in their article "The Official Story," apparently coming "soonish." Ultimately, though I'm skeptical of some of Barzun's contentions, I still wholeheartedly recommend his important and delightfully readable article!  

08/18/2019

Jack Balkin: Translating the Constitution
Michael Ramsey

Jack M. Balkin (Yale University - Law School) has posted Translating the Constitution (43 pages) on SSRN.  Here is the abstract:

Lawrence Lessig's recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019), restates and expands his important and influential theory of interpretive fidelity as translation.

This book review is in three parts. Part One explains why, although Lessig's theory is based on fidelity to original meaning, his originalism is unlike most contemporary versions. Indeed, despite his metaphor of translation, Lessig is not really a textualist at all. Unlike most contemporary originalists, he pays relatively little attention to parsing the words of constitutional text, or to their history. Instead, he is a purposivist and structuralist, who argues that fidelity to purpose and structure in changed contexts may sometimes justify departing from the text or adding things to the text.

Part Two examines Lessig’s use of the concept of social meaning to explain and justify many of the Supreme Court’s most famous liberal decisions, including Brown v. Board of Education, the sex equality cases, the reproductive rights cases, and the gay rights cases. Lessig's concept of "social meaning" actually refers to changes in elite consensus among the relatively small groups of elites who form the audience for Supreme Court Justices. Lessig's arguments are an imaginative restatement of the American Legal Process tradition, but using a different vocabulary. In an age of polarized elites like today, however, Lessig's social meaning account threatens to break down, as Lessig himself recognizes.

Part Three considers whether a purely internalist theory of constitutional change like Lessig’s is adequate to explain the growth and development of the American Constitution. It argues that Lessig’s account of change relies too much on how the world looks to the Justices, rather than on how the world actually changes; it also relies too much on winner's history. His account could be made stronger by focusing on the role of political parties, social movements, and state-building in constitutional change; and the long-term construction of judicial review by the political branches. The result would no longer be purely internalist. But it might be a more powerful account of the complicated processes of constitutional change.

(Via Balkinization).