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33 posts from August 2019


More from Eric Segall on Originalism as Our Law
Michael Ramsey

At Dorf on Law, Eric Segall:  Originalism as Current Law? Yet Another response to Baude and Sachs.  From the introduction: 

Last Friday, two things happened to me related to originalism. I received in the mail reprints of an article I wrote for Constitutional Commentary (no link yet) called "Originalism Off the Ground." The piece was a response to yet another Arthurian attempt by Professors Will Baude and Stephen Sachs to convince the world that Originalism is indeed our law. The thrust of my piece was that the collective work of Will and Steve on originalism and history (I will use their first names because I consider them friends) has failed to address the core realist critique that constitutional law is mostly the sum of the Justices' value preferences, and originalism and all other meta theories play at most a negligible role.

The second thing that happened on Friday was that Steve put on Facebook a link to his and Will's new essay titled "Originalism and the Law of the Past," published by the Law and History Review. The SSRN link is here. The third and fourth sentences of this essay state that "originalism is best understood as a claim about modern law-which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders' law, unless lawfully changed."

Their entire essay (with one small exception discussed below) ignores the argument that the "law" of the past in constitutional law is composed of imprecise text, contested history, political practices that often lead to opposing perspectives about the issue of the day, and Supreme Court precedent which is mostly dictated by values, politics, and experiences, not history. In sum, once again, Will and Steve do not address in any serious way the realist critique. They are avoiding it like the plague (I have drawn their attention to it on numerous occasions in person and in writing). For two legal positivists, this avoidance is important. ...


Two-and-a-Half Cheers for Baude and Sachs' Positivist Originalism (Part 2)
Will Foster

This is the second of two posts discussing Will Baude and Stephen Sachs’ positivist originalism, as explicated most recently in their article “Grounding Originalism.” My first post defended Baude and Sachs’ thesis (that a form of originalism is “the law” as a matter of social fact) against a powerful recent critique by Eric Segall entitled “Originalism Off the Ground.” In this second installment I wish to note some concerns I still have about Baude and Sachs’ project. 

First, earlier I characterized Baude and Sachs’ view as being that the original meaning of the Constitution is the ultimate criterion for constitutional law. However, a more precise statement of their current view is that they believe Founding-era law is the ultimate criterion for constitutional law (they have thus called their view “original-law originalism”) (Grounding, p. 1457). To succeed in their positivist quest, therefore, Baude and Sachs must prove that we really accept the Founders’ entire law (plus lawful changes) as binding. However, it could conceivably be the case that many Americans merely accept as law the “thin” original semantic meaning of the words found in the text, and do not care about the legal rules the Founders would have used to clarify vague provisions (perhaps most people think it’s fine to impose, say, Dworkinian moral readings so long as the text is not completely contradicted). Or maybe many Americans treat as controlling the Framers’ intended meanings, not the “original law” per se. Indeed, people don’t usually present originalism as a theory of lawful changes; they present it as a theory of meaning (whether derived from public meaning or subjective intentions). On balance, though, I think Baude and Sachs probably have the better view: That original interpretative rules do matter. For example, my intuition is that if irrefutable historical evidence were discovered that the Founders actually intended the Constitution’s text to be completely and entirely ignored after 20 years, then everyone would start ignoring the text, even the most die-hard “textualist” originalists. That said, the matter may deserve further study. 

Second, Baude and Sachs’ definition of what counts as an originalist argument, although in many ways quite sensible and attractive, is so capacious that it seems to swallow nearly every possible argument that someone might make in American constitutional law. Consider, for example, Sachs’ example of a non-originalist argument: “Suppose someone wanted to argue for the Reynolds [v. Sims] rule … [but] conceded that equal apportionment was not the law at the Founding, that it was not validly adopted in 1868, that it does not follow from applying rules to changing facts, that the Court had not been authorized to impose the rule on its own, that its decision does not deserve respect as a matter of stare decisis (or any other doctrine finding its roots in the Founding era), and so on. They just think, notwithstanding all this, that Reynolds is still the law … Whatever else you might say about that position, it isn’t originalist” (Sachs, p. 866).

 The definition of an originalist argument Sachs is using here is quite broad, to put it mildly. Through their “positive turn” in originalist scholarship, Baude and Sachs say they are trying to move away from the sorts of “conceptual” arguments about why originalism is essential -- e.g., the argument that originalism is the only coherent way to run a legal system based on a written constitution. Rather, Baude and Sachs treat originalism as a contingent result of the (potentially unique) way America’s legal system works. However, because their definition of an originalist argument is so broad it seems likely that most other countries also use lots of originalist arguments in their legal systems. So presumably they are originalist too. It is difficult for me to imagine how any remotely sensible legal system could not be originalist in the sense Baude and Sachs describe. (Baude has suggested some real-world possibilities (Baude, pp. 2401-02), but I remain a bit skeptical.) 

Under Baude and Sachs’ paradigm, it appears virtually any sort of reasoning the Supreme Court might use can be described in fundamentally originalist terms (although it might not be correct originalist reasoning as a historical matter). For example, David Strauss could argue that his common-law constitutionalism derives from the Founders’ law because, he could contend, the common-law method was known and expected at the Founding. Even an argument like the following one (only tangentially related to the constitutional text) would apparently be originalist: A primary goal of the Founding Fathers in enacting the Constitution was to promote happiness. Teddy bears promote happiness. Therefore, the federal government is constitutionally obligated to provide every citizen with a free teddy bear. To be sure, this might not be a very good originalist argument, because there is no historical support for it, but this change in nomenclature still marks a major shift from when the argument would not be considered originalist in any way, shape, or form. Chris Green seems to wholeheartedly accept the implications of a broad definition of what counts as an originalist argument, writing that “[b]y my lights, all 9 [Supreme Court] justices are originalist … Some are more explicit, but none of them has repudiated the commitment itself, which would require resigning from office.” I do not believe Baude and Sachs have explicitly stated whether they agree with that statement, but I cannot see any reason why they wouldn’t.

That sort of rhetoric would seem to render incoherent the frequent dichotomy drawn, particularly by conservatives and libertarians, between (ostensibly) principled originalist judges and (ostensibly) activist living constitutionalist judges. If most or all judges are originalist, then the difference between, say, Neil Gorsuch and Merrick Garland is essentially a difference in degree -- not, contrary to what is often assumed, in kind. In other words, the difference would be between good originalists and not so good originalists, rather than between originalists and non-originalists. (To be clear, I am not necessarily implying that Gorsuch is a better originalist than Garland; indeed, I suspect there are even some self-proclaimed originalists who would take the contrary position.) 

In a prior blog post, Segall has put it this way: “If judges are already deciding cases in an originalist fashion … then why the huge political and academic outcry for President Trump (really Leonard Leo on leave from the Federalist Society) to appoint originalist judges as if that would be a serious break from tradition?” I am not sure if I am entirely comfortable with the conclusion that the difference between Merrick Garland and Neil Gorsuch is merely one between different types of originalists. I am thus inclined to sympathize with Lawrence Solum’s statement that “the failure to draw a line between originalism and living constitutionalism engenders conceptual confusion and strong metalinguistic resistance” (Solum, p. 1277). Indeed, “the view that living constitutionalism is inconsistent with originalism … captures an important feature of the mainstream of constitutional discourse” (Solum, p. 1281). Chris Green has suggested on this blog the term “meta-originalism” to describe original-law originalism, “because it can encompass those who think that we have always had a common-law, intergenerationally-authored Constitution.” That all being said, however, I am not yet entirely sure whether Solum’s (or Green’s) preferred definition of originalism is any better than Baude and Sachs’ definition, despite the concerns the latter may raise. And indeed the difference between the definitions may not really be all that important, given that (in my view and that of most originalist scholars) the Founders’ law affirmed fixation and constraint with respect to the text’s communicative content. So even if “originalism” is properly limited to the communicative content/sense definition, it may be that this “originalism” is simply a straightforward corollary of Baude and Sachs’ “meta-originalism.” 

Another question about original-law originalism that I’m still struggling with is this: How can it be legitimate to rely on the law’s supposed “deep structure” to radically change current day-to-day practices? As Richard Primus has noted, the fact that people might accept originalism done badly (e.g., Obergefell’s unsupported conclusion about the original meaning of the Due Process Clause) hardly proves that they’d accept it done well. Even if people have a vague sense that the original meaning is the law, they might not be willing to do any serious historical research to find that original meaning. Baude and Sachs suggest that the sort of motivated reasoning found in half-hearted appeals to the Founders “still admits the force of originalist arguments that might wake us from our dogmatic slumbers” (Grounding, p. 1487).  “The deep structure of our legal system is a question of present law, not a prediction of future behavior,” Baude and Sachs say (Grounding, p. 1476). Perhaps, but as a practical matter the persuasive power of appeals to original meaning in our current culture seems quite weak (i.e., even if departures from original meaning are theoretically subject to originalist refutation, it’s not clear that this can actually happen very often). For example, most Supreme Court justices seem to ignore Justice Thomas’ solo originalist concurrences and dissents; if they were genuinely interested in finding the original meaning, it is hard to understand why they would not provide any citation or response to Thomas’ opinions in their own opinions. Then again, perhaps thinking about Supreme Court justices (most of whom are rather old and have well-settled beliefs) is not a representative example; perhaps appeals to original meaning would have greater persuading power among younger lawyers and scholars. On balance, I am still inclined to side with Baude and Sachs on this question, but it is a very difficult one. 

Finally, it is important to consider the implications of the thesis that originalism is our law for judicial conduct. The optimistic view is that because virtually all judges are originalist, everyone is essentially on the same team, trying to do the same basic task (kumbaya!). The pessimistic view is that, because most (all?) judges are originalist but some presumably are not very good originalists, it might appear that some judges are basically incompetent at applying their own methodology (and perhaps should therefore be impeached). That is a rather startling conclusion, and perhaps there is some way to avoid it, but it does seem that characterizing interpretative methodologies as law (contra, e.g., Asher Steinberg) would have some consequences for how we view the Supreme Court (and other judges). Under a pluralist “modalities” conception of constitutional law, a certain amount of methodological disagreement can be tolerated. I am not sure the same can be said if originalism is our exclusive law. (To be sure, I am not necessarily saying this is a bad thing.) 

So, to sum things up: I agree with Baude and Sachs that the framework of positive law is the best way to justify originalism, and I believe that their project basically succeeds. However, as to the precise outlines of their theory I have a few concerns that I’m still struggling with, some semantic and some more substantive.


Two-and-a-Half Cheers for Baude and Sachs' Positivist Originalism (Part 1)
Will Foster

In a new article entitled “Originalism Off the Ground,” Eric Segall inveighs against the efforts of scholars Will Baude and Stephen Sachs to prove that originalism is currently America’s constitutional positive law. “Our actual law,” Segall contends, is driven by “non-originalist values” (Segall, p. 102). Segall’s writing is, as always, thought-provoking and incisive. But although I have a few reservations about Baude and Sachs’ project, overall I am not convinced that Segall’s attack on positivist originalism is as devastating as he hopes. 

Segall’s own descriptive account of constitutional law is that “[t]here is substantial data … that strongly suggest[s] that where judges have legal discretion, their values, experiences, and politics determine the sum and substance of our law” (Segall, pp. 101-02). To a large extent it is difficult to disagree with that assessment. But is Segall’s descriptive account the right kind of descriptive account if we want to figure out what the law requires? I do not believe so, for the reasons Baude and Sachs give in the article to which Segall was responding, “Grounding Originalism” (see particularly the Al Capone thought experiment on page 1469). 

So what is our current law? Although this is not an easy question to answer, I agree with Baude and Sachs that current social practice points toward a form of originalism in which “the original meaning of the Constitution is the ultimate criterion for constitutional law, including of the validity of other methods of interpretation or decision” (Baude, p. 2352). (Actually, Baude and Sachs’ view is a bit more nuanced than that, but for now this definition will work best.) Assuming (as most do) that stare decisis was accepted by the Founders, this form of originalism permits judges to use a doctrine of precedent. 

Segall correctly notes (and Baude and Sachs do not deny) that the American people have accepted many Supreme Court rulings departing from the Constitution’s original meaning (Segall, p. 104). But, as Larry Alexander insightfully notes, “[The people] have generally acquiesced in those departures, even ones that they have disliked. But have they been aware that those departures were departures?” (Alexander, p. 24). Like Alexander, I believe the answer, on balance, is no. If I’m right, then those departures remain “vulnerable to originalist refutation,” at least in theory (Grounding, p. 1481). As Baude and Sachs have argued elsewhere at much more length, even if it’s true that the Supreme Court has frequently departed from the Constitution’s original meaning (Segall, pp. 103-04), that does not refute the thesis that the “deep structure” of current law is originalist. (Baude and Sachs’ evidence is summarized in a helpful seven-point list on pages 1477-78 of “Grounding Originalism.”) Segall responds that “the ‘deep structure of the law’ does not resolve cases, judges do” (Segall, p. 113). This is true, but largely irrelevant. The natural world does not conduct experiments, scientists do; yet no one describing the scientific method would say that scientific inquiry is focused mostly on observing the practices of scientists. 

Segall does correctly note that “[c]onstitutional law comes with a heavy mix of legal and policy content” (Segall, p. 107). This is a very powerful point. As Segall puts it, why shouldn’t we say “policy arguments are our law”? (Segall, p. 107) Arguments like those Segall describes -- “The Justices’ abortion decisions were wrong because the fetus is a human being,” “Citizens United increases the role of money in politics,” etc. (Segall, p. 106) -- do indeed appear to be commonplace in our culture. Perhaps this means the living Constitution has won, and the document’s meaning depends on the latest popular sentiments. Ultimately, however, I am not persuaded by Segall’s argument on this point. First, there may be a relevant distinction between the informal way lay people talk about the law and the actual, formal law. Second, it is not clear that even the general public views the law as reducible to partisan preferences, even if at a superficial level that may appear to be so. Take Citizens United, for instance. I would be very surprised to find someone who A) believes that the historical argument in Justice Scalia’s concurrence and the precedential analysis in Justice Kennedy’s opinion were spot-on but B) describes Citizens United as “wrongly decided.” I think when people make arguments that sound a little like “The case was wrongly decided because the practical consequences were so bad,” what they really mean is “The case was wrongly decided as a legal matter, and that is doubly unfortunate because the practical consequences are so bad.” Now, on the legal aspect, members of the public often simply defer (explicitly or implicity) to the statements of particular judges or law professors that they side with politically and therefore identify with. That is, I think, why it might seem at first blush like the standard of legal correctness in America has become good political consequences. 

A similar reply can be made to those who might argue that our culture treats Supreme Court decisions as ultimate law (Segall, pp. 109-10). It is undoubtedly true that many Americans say things like “Roe v. Wade secures a constitutional right to abortion.” However, I think most people who support a right to abortion probably believe or assume that Roe was a correct interpretation of the Due Process Clause’s original meaning, particularly given the powerful forces of confirmation bias and motivated reasoning. (To be clear, I express no personal opinion here as to Roe’s merits.) Even those who do not believe Roe was correct as an original matter likely still believe a doctrine of stare decisis is permitted by Article III’s original meaning, and therefore do not see themselves as violating the Constitution’s original meaning when they adhere to Roe. Admittedly, most people don’t explicitly draw the sort of connections to original meaning I’m making here. Still, I think the connections are present, even if they are sometimes obscured in a discourse chock-full of heuristics. (Sachs’ 2014 article “The ‘Constitution in Exile’ as a Problem for Legal Theory” has some excellent discussion along these lines on pages 2276-78.) 

I believe even the Supreme Court justices not typically considered originalist actually believe their decisions are in accordance with original meaning. For examples of them saying this explicitly in opinions, see Ginsburg’s NFIB opinion, joined by Breyer, Sotomayor, and Kagan; Stevens’ McDonald dissent; Stevens’ Roper concurrence, joined by Ginsburg; and Kennedy’s Obergefell opinion, joined by Breyer, Sotomayor, Ginsburg, and Kagan. Ginsburg and Kagan have also explicitly described themselves as “originalists.” Senator Dianne Feinstein’s statement during the Gorsuch hearings suggests that she too looks to the Founders’ authority: She believes the Constitution is a “living document” in part because to “evaluate our constitutional rights and privileges as they were understood in 1789” would in her view “ignore the intent of the Framers that the Constitution would be a framework on which to build.” (Incidentally, I seem to recall seeing a fellow group of students at my high school make a similar argument in a paragraph of their Civics paper this spring -- the Constitution is a living document precisely because that’s what the Founders allegedly wanted.) 

The historical claims made in favor of evolving interpretations must be put to the test, of course (cf. Segall, pp. 105-06). But the fact that they are made reveals the deep originalist strain in our constitutional culture. The fact that “because the Founders wanted us to” counts as a valid reason -- perhaps even a necessary reason -- to support a particular interpretative philosophy is a remarkable but unmistakable feature of our legal culture. (Perhaps this feature might be in some ways normatively undesirable, but it’s clearly present.) I have expressed some tentative sympathy for Baude and Sachs’ originalism on this blog in the past, and after reading their more recent work and thinking through some of the problems myself, I have come to agree wholeheartedly with their essential thesis. I believe current positive law requires judges to be Baude/Sachs-style originalists, and also that this fact is the best reason to be an originalist. It seems to me that some form of originalism is the only way to adequately account for the enormous cultural salience of the Constitution’s text. Ultimately, our constitutional practice is rooted in the choices the Founders made, to write certain things down, with certain meanings, and not other things. I am now a complete convert to positivist originalism. 

Well, almost. I do have a few reservations about Baude and Sachs’ project. I will discuss those in a second post coming soon.


Nicholas Kahn-Fogel: Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism
Michael Ramsey

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism (43 pages) on SSRN.  Here is the abstract:

In Carpenter v. United States, the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States established in 1967 for identifying Fourth Amendment searches. Justice Neil Gorsuch, in dissent, critiqued Katz as indeterminate, insufficiently protective, and inconsistent with democratic values. In this article, I analyze Justice Gorsuch’s proposed alternative framework, which he described as the “traditional approach” to determining Fourth Amendment interests. Instead of grappling with the indefinite and textually and historically unfounded “reasonable expectations of privacy” framework of Katz, Gorsuch asserted, this traditional test would require judges to focus on whether a “house, paper, or effect was yours under law.” Although Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of “papers” and “effects” and the kinds of property closely enough associated with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch’s opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Gorsuch’s dissent, it is certain that his property model would be more expansive than the pre-Katz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Moreover, in situations in which the “traditional approach” fails to protect asserted Fourth Amendment rights, Gorsuch might be willing to rely on Katz despite its shortcomings. Finally, because a broad property rubric would involve a significant degree of judicial discretion, such an approach could negate its own ostensible virtues, such as greater determinacy and democratic legitimacy. Nonetheless, Justice Gorsuch might prefer a flexible “traditional approach” to Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Gorsuch’s originalist sympathies.


Mark David Hall on Andrew Seidel on the Founders and Religion
Michael Ramsey

At Law & Liberty, Mark David Hall (Professor of Politics, George Fox University): Unlearning The Founding Myth (reviewing [harshly] Andrew L. Seidel, The Founding Myth: Why Christian Nationalism is Un-American).  From the introduction:

Andrew L. Seidel, an attorney with the Freedom From Religion Foundation, is an atheist, and an angry one at that. His recent book, The Founding Myth: Why Christian Nationalism is Un-American, is, in his own words, “not a work of academic history but an argument, an attack. Specifically, it is an attack on Christian nationalism.” There is nothing wrong with attacking something that needs to be attacked, but if an author hopes to convince the unconvinced, he or she needs to use evidence fairly, make persuasive arguments, and perhaps even do these things in a winsome manner. Seidel’s book will make no converts.

Apparently believing that ridicule is a persuasive rhetorical strategy, Seidel offers a steady stream of it throughout his work. Two examples will suffice to make this point. In a discussion of the Torah, he likens the God of Abraham, Isaac, and Jacob to a chest-slapping gorilla who issues that First Commandment because he is insecure. Turning to the Gospels, he suggests that the “whole of Christianity may be predicated on Mary’s adultery.” One does not need to be a person of faith to be put off by such depictions, and it is puzzling that a self-described “forward-thinking” press like Sterling would publish them.

(The next section is titled "Misusing Sources," and the essay does not get any more complimentary after that).


William Treanor on Gouverneur Morris and the Constitution
Michael Ramsey

At SCOTUSblog, William Treanor: The Framer’s intent: Gouverneur Morris, the Committee of Style and the creation of the Federalist Constitution.  From the introduction: 

As the federal constitutional convention drew to a close, the delegates appointed the Committee of Style and Arrangement to prepare a final Constitution from the textual provisions that the convention had previously adopted. Pennsylvania delegate Gouverneur Morris was assigned the task of drafting, and, with few revisions and little debate, the convention hurriedly adopted the committee’s proposed Constitution. For more than 200 years, questions have been raised as to whether Morris as drafter covertly made changes in the text in order to advance his constitutional vision, but the legal scholars and historians studying the convention have either failed to consider that possibility or concluded that Morris was an honest scrivener. Remarkably, however, there is no study that systematically compares the committee’s draft to the previously adopted resolutions. Also remarkably, even though in four decisions in the last 50 years the Supreme Court has concluded that the committee had no right to change the Constitution’s meaning and that any substantive changes it made should be disregarded, there has been little attention to whether the court’s approach is sound. My recently posted article, “Framer’s Intent: Gouverneur Morris, the Committee of Style and the Creation of the Federalist Constitution,” is the first article to focus on the committee’s draft and the ways in which it departed from the text the convention had previously approved and to examine the legal significance of those important changes.

Although largely forgotten today, Morris was a “genius,” in the admiring judgment of both Alexander Hamilton and James Madison. He spoke more often at the convention than any other delegate, and he was a logical choice to be the drafter. Although the committee had other talented members (including Hamilton and Madison), Morris’ speeches evidenced an unmatched gift for language, and he was the committee member with the deepest experience as a constitutional drafter, having been one of the three principal authors of the New York Constitution.

As drafter for the Committee of Style, Morris made a series of subtle changes that his fellow delegates missed (or thought stylistic) when they considered the Committee of Style’s draft but that advanced goals that he had not been able to win during the floor votes. The most prominent examples appear below, but the article discusses 12 substantive changes that Morris made. His changes became central to many of the great constitutional debates of the early republic, and, for originalists, they are central – or should be central – to many of today’s most significant constitutional debates.

An earlier version of Dean Treanor's outstanding paper was presented at the Originalism Works-in-Progress conference in San Diego in February.


Robert Natelson: More News on Powers Reserved Exclusively to the States
Michael Ramsey

Recently published, in the Federalist Society Review, Robert Natelson (Independence Institute): More News on Powers Reserved Exclusively to the States (20 Fed. Soc. Rev. 92 (2019)).  Here is the introduction (footnotes omitted): 

This essay updates and supplements an article published last in the Federalist Society Review entitled The Founders Interpret the Constitution: The Division of Federal and State Powers.  That article explained how during the Constitution’s ratification debates (1787-90), leading Federalists (the Constitution’s advocates) issued authoritative enumerations of powers that would remain outside the federal sphere under the Constitution if ratified. Most of the enumerators were highly respected American lawyers. The two most important non-lawyers were Tench Coxe and James Madison. Coxe was a Philadelphia businessman and economist, member of the 1789 Confederation Congress, and future assistant secretary of the treasury.

Coxe’s ratification-era writings were highly influential among the general ratifying public—perhaps as influential as the essays in The Federalist. Subsequent interpreters of legal texts generally give considerable weight to representations of meaning presented by a measure’s sponsors. The Federalists enumerating powers the Constitution denied to the central government clearly intended that the ratifying public rely on their representations. These representations squarely contradict claims by some commentators that the Constitution conferred near-plenary authority on the federal government.

This essay serves two purposes. First, it briefly addresses and refutes claims that near-plenary federal power lurks within two seemingly straightforward constitutional grants: the Commerce Clause and the Necessary and Proper Clause. Second, it summarizes how materials reproduced in three newly published volumes in the Documentary History of the Ratification of the Constitution of the United States reinforce the conclusion of last year’s article.

Plus, pp. 94-96, a direct counter to John Mikhail's expansive theory of the necessary and proper clause (see John Mikhail, A Tale of Two Sweeping Clauses, 42 Harvard J. L. & Pub. Pol’y 29 (2018); and John Mikhail, The Necessary and Proper Clauses, 102 Geo. L.J. 1045 (2014)).


The President and Withdrawal from Treaties
Michael Ramsey

Last week the United States withdrew from the Intermediate Range Nuclear Forces (INF) Agreement with Russia, pursuant to the Treaty's six-month notification period for withdrawal (the notification was sent in February).  The President directed the notification and withdrawal on his own independent constitutional authority.

I have not seen any substantial constitutional objection to this action -- which is a little surprising given widespread constitutional objections to various presidential actions and the fact that the Constitution says nothing directly about the power to withdraw from treaties.  Perhaps it's assumed that the President has this power as a result of longstanding practice (as discussed by Curtis Bradley here).  But that does not resolve the Constitution's original allocation of the power.

One might say that treaties can be terminated by the President only with the Senate's consent -- the same process by which treaties are made.  But that seems unlikely: appointments are (generally) made by the President with the Senate's consent, but it's not thought that the Senate must consent to removals.  (Some people made that argument in 1789 but they were small minority).  And if the power to appoint does not imply the power to remove, it seems unlikely that the power to make treaties implies the power to unmake them.

Or one might say that Congress has the power to withdraw from treaties.  To an extent, this is surely true.  If a treaty interferes with Congress' exercise of an enumerated power, Congress would seem to have the necessary and proper power to remove the obstacle of the treaty.  Indeed, pursuant to what we now call the "later-in-time" rule, Congress can simply violate a treaty by passing inconsistent legislation.

But this only takes us so far.  First, that Congress has this power does not show that the President lacks it.  Treaty withdrawal could be a concurrent power.  Second, and more importantly, this reasoning only extends to treaties that are within Congress' enumerated powers.  (Some people argue that treaties cannot reach subjects beyond Congress' enumerated powers, but I think the textualist and originalist evidence is firmly against that view, as discussed here).  Assuming treaties can reach beyond Congress' enumerated powers, there seems little basis to say that Congress can withdraw from them.

That brings us back to the President.  But the President's specific textual powers do not seem helpful either.  The power to make treaties with the consent of the Senate surely does not imply the power to withdraw from treaties without the Senate's consent.  The power to receive ambassadors also seems unhelpful, both because treaty withdrawals are not necessarily communicated through ambassadors and because this clause seems an odd place to hide the withdrawal power.  Perhaps treaty withdrawal is a form of law execution (treaties are the supreme law of the land, by Article VI, and withdrawing from a treaty in accordance with its terms might seem like a form of executing it).  So maybe the power comes from the take care clause.  But I think not.  First, I don't think that clause gives any power at all: it describes a duty, not a power. Second, it's a bit awkward to say that one executes a treaty by deciding to no longer execute it.  To be clear, I don't think the take care clause prohibits the President from withdrawing from a treaty (as long as he doesn't violate it), but I also don't think it empowers him to do so.

The solution to this puzzle, in my view, is the executive power vested in the President by Article II, Section 1.  As I've argued at length (e.g., here), this clause (a) is a substantive grant of power and (b) contains, in addition to the power to execute the laws, a variety of foreign affairs powers not otherwise allocated in the Constitution.  Generally speaking, this executive foreign affairs power amounts to the power to manage diplomatic interactions with foreign countries.  And managing relations with treaty partners, including withdrawing from treaties where appropriate, seems to fit well within this power.

So presidential withdrawals from treaties do not worry me as a constitutional matter.  (Presidential violations of treaties are another matter, but that is not today's topic).  But they are a substantial challenge for scholars and commentators who do not accept the Article II, Section 1 executive power in foreign affairs.  It seems highly unlikely that the Constitution provides no way to withdraw from treaties (especially treaties that specifically contemplate withdrawal by notification).  If Article II, Section 1 is not the source of this power, what is?


Thomas Bettge: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins
Michael Ramsey

Thomas Bettge (independent) has posted Marbury in the Vanishing Cabinet: Evaluating Originalism in the Light of Judicial Review's Uncertain Origins (Willamette Law Review, Vol. 55, No. 1, 2018) (45 pages) on SSRN.  Here is the abstract: 

Although originalism has occasioned substantial rethinking of many facets of our constitutional law, the doctrine of judicial review articulated in Marbury v. Madison has gone largely unquestioned. This article explores the uncertain place of judicial review in the original Constitution, and systematically lays out the consequences of that uncertainty for today's originalism.

The article unfolds the problems originalists face if judicial review was not part of the original constitutional framework. While many scholars in both the originalist and nonoriginalist camps believe that judicial review's place in the original Constitution is well established, this paper scrutinizes the leading scholarship on the history of judicial review and shows that, contrary to popular belief, judicial review's historical bona fides are fundamentally uncertain. Because judicial review cannot be justified on originalist grounds, originalists need to seek other reasons for engaging in it, and must reconcile those reasons with the basic tenets of originalism. To an extent, they have already done this, but significant gaps remain. The article considers what reasons originalists could invoke, and concludes that it will be difficult, absent historical legitimation for the practice of judicial review, for originalists to make an argument for judicial review that favors originalism over competing interpretive theories.

Regular readers know that I am highly unpersuaded by the originalist argument against judicial review so I will refrain from further comment.  But the article's "thought experiment" is interesting -- what if the Constitution's original meaning really does not grant the power of judicial review?  The obvious originalist response of course is: then there is no power of judicial review.  I wonder, is that the only possible originalist response?  I think it is, but it's a question worth asking.


Andrew Jordan: The (Ir)relevance of Positivist Arguments for Originalism
Michael Ramsey

Andrew Jordan (Judicial Attorney, Ohio Supreme Court) has posted The (Ir)relevance of Positivist Arguments for Originalism (37 pages) on SSRN.  Here is the abstract:

In a series of recent Articles William Baude and Stephen Sachs argue that as a matter of positive law — that is, as a matter of our convergent social practices — a form of originalism is in fact our law. Having provided an account of the content of the law they presume to also have provided an account of sound adjudication. But I argue that this inference requires showing that an account of the content of the law is explanatorily prior to an account of sound adjudication, and I argue that we need not accept this assumption. Indeed, if the positivist view endorsed Baude and Sachs is true, this assumption will turn out to be false. I then provide an account of how the contingent social practices that constitute positive law bear on the further question of how a judge ought to decide a case. And I argue that properly understood the normative relevance of these social practices cannot ground anything like a general duty to apply positive law. Thus, I argue that Baude and Sachs’s positivist arguments have no bearing on the concerns that animate most normative constitutional theorizing — a concern to provide a theory of sound adjudication. Authors who have been concerned about the normative merits of different constitutional theories can safely ignore the positive turn.