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17 posts from September 2019


Timothy Sandefur on the Anti-Slavery Constitution
Michael Ramsey

At NRO, Timothy Sandefur: The Anti-Slavery Constitution.  From the beginning:

It’s become an article of faith on the left that America was founded by racists who wrote the Constitution in part to preserve slavery. Historian David Waldstreicher calls it “a proslavery constitution, in intention and effect.” Yale law professor Akhil Amar labels the Constitution “pro-slavery.” Author Ibram Kendi claims that the Framers “embraced Black inferiority” and “enshrined the power of slaveholders and racist ideas in the nation’s founding document.” And the New York Times’ “1619 Project” purports to “reframe” American history by positing not only that the United States was founded “as a slavocracy” but that “nearly everything that has truly made America exceptional” is the result of “slavery — and the anti-black racism it required.”

There’s nothing new about these assertions. The idea that America is premised on white supremacy has been a commonplace of political debate ever since it was proffered by pro-slavery intellectuals in the 1830s. What’s astonishing is the degree to which it has been adopted by today’s progressives. In his 1857 Dred Scott ruling, Chief Justice Roger Taney claimed that when the Founding Fathers said “all men are created equal,” they really meant only white men. Today, many left-wing journalists, lawyers, politicians, and academics would hasten to agree. 

But the reality is more complex and, in some ways, more ennobling. Far from being a given at the time, the constitutional status of slavery was the subject of intense dispute in the decades before the Civil War. One side of that debate argued with much plausibility that slavery was already unconstitutional, decades before adoption of the 13th, 14th, and 15th Amendments. 

This is unjust, and it gives a distorted picture of the legal history of slavery. ...

(Via Randy Barnett at Volokh Conspiracy, who has more).


Josh Blackman & Ilya Shapiro on the DACA Litigation
Michael Ramsey

At the SCOTUSBlog symposium on the DACA litigation (Department of Homeland Security v. Regents of the University of California), Josh Blackman (South Texas) and Ilya Shapiro (Cato Institute): Don’t judge a brief by its cover: DACA is a good policy that Congress has not authorized.  From the introduction:

We recently filed an amicus brief “in support of DACA as a matter of policy but [the government] as a matter of law.” The caption caused quite a kerfuffle on social media. “Is that a thing?” they tweeted. Yes, it is a thing. And the court would be well served to receive more briefs that expressly acknowledge the distinction between law and policy. Most Supreme Court amicus briefs are predictable. Groups that favor outcome A argue that the law supports outcome A. Groups that favor outcome B argue that the law supports outcome B. Occasionally, groups file cross-ideological briefs in which people of opposite political stripes unite to support a specific cause. But even these briefs fall into the same pattern: Regardless of ostensible ideological labels, all the groups on the brief support the policy outcome that the brief’s legal theory advances.

In Department of Homeland Security v. Regents of the University of California, the Cato Institute and Professor Jeremy Rabkin took a different approach. We affirmatively support as a matter of policy normalizing the immigration status of individuals who were brought to this country as children and have no criminal records. (See Cato’s immigration work if you have any doubts.) Moreover, as a matter of first principle, people shouldn’t need government permission to work. But the president cannot unilaterally make such a fundamental change to our immigration policy — not even when Congress refuses to act. Indeed, our deep concerns about the separation of powers and abuse of executive power motivated us to file this brief. Presidents with different priorities come and go. The principle that Congress cannot delegate its legislative power to the president, such that he alone can fix the law, remains.

And in conclusion:

Returning to our theme of the difference between law and policy, we often offer similar advice to law students: Ask your professors to give examples of policies they like but think are not constitutional, or those they don’t like but think are. That question poses a real test of intellectual integrity. If your policy preferences and legal theories always align, you should reconsider the latter. Some policies we dislike are, regrettably, lawful – as the late Justice Antonin Scalia would say, “stupid, but constitutional.” And other policies we favor are, regrettably, unlawful. DACA falls into the latter category.

The president simply can’t make the requisite legal changes by himself to give this relief to the Dreamers. As one of us (Ilya) put it in the Washington Post, such unlawful executive actions both set back prospects for long-term reform and, more importantly for a Supreme Court case, weaken the rule of law. The justices should reverse the lower courts and restore the immigration debate to the political process — exactly where it belongs.

For an opposing view, from the same symposium, Dayna Zolle and Brianne Gorod: The DACA cases may be the next big test for the Roberts Court.  It concludes: 

In sum, DACA did what Congress legally authorized the executive to do: temporarily defer the removal of qualified “young people who were brought to this country as children and know only this country as home,” so that immigration officers could instead focus their enforcement efforts and limited resources on higher-priority cases. DACA is therefore lawful — just like the various deferred-action programs that preceded it. Given that, Trump cannot now claim that he is compelled to end the program on the ground that it suffers from “legal and constitutional defects.” As the U.S. Court of Appeals for the 9th Circuit recognized, “where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”

Trump may be hoping that the Supreme Court will give him the victory on DACA that the lower courts in these cases have denied him, but there’s good reason to think that it won’t. And that would be a good thing not only for DACA recipients, but also for the rule of law and the country as a whole.

I'm inclined to think DACA is constitutional (a bit tentatively, and I admit that I may have posts leaning both directions over the past few years).  But it seems to me that that should not be the question in the present litigation.  The President has the executive power to decide constitutional questions independently from the courts.  When courts find actions unconstitutional, that is the last word (at least as to parties before the court).  But if courts find actions constitutional, the President is entitled to disagree and act on that view.  This proposition dates at least to Andrew Jackson's rejection of the Bank of the United States (the Court having previously upheld the Bank in McCulloch v. Maryland), and I would say it's implicit in the idea of judicial review set out in Marbury.

Thus I think the question in the DACA litigation at most is whether the President reasonably believed the program was unconstitutional.


Larry Alexander: Goldsworthy on Interpretation of Statutes and Constitutions
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Goldsworthy on Interpretation of Statutes and Constitutions: Public Meaning, Intended Meaning and the Bogey of Aggregation (Law Under a Democratic Constitution: Essays in Honour of Jeffrey Goldsworthy, 2019) (9 pages) on SSRN.  Here is the abstract: 

This chapter is for a festschrift in honor of Jeffrey Goldsworthy. Much of Goldworthy’s scholarship has been devoted to legal interpretation. I show the similarity and the difference between our views of legal interpretation.

Professor Goldsworthy, of Monash University in Melbourne, Australia, is perhaps the world's most prominent non-U.S. originalist scholar.

RELATED: Also recently posted by Professor Alexander: Appreciation and Responses (Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (H. Hurd, ed. 2018)) (79 pages).  Here is the abstract:

In this concluding chapter in a festschrift volume in my honor, I respond to the twenty-three commentators on my work. The topics range widely – various issues in criminal law, constitutional law, and moral theory. The reader will judge how well I deal with the critiques of these commentators.

Thee is quite a bit of high-level originalist discussion in the contributions to the volume and in the response.


Colfax on the Rights of U.S. Citizens
Andrew Hyman

Schuyler Colfax of Indiana was speaker of the U.S. House of Representatives from 1863 to 1869, and later vice president of the U.S. from 1869 to 1873 during the administration of Ulysses S. Grant.  On August 7, 1866, less than two months after the Fourteenth Amendment had been sent to the states for ratification, Colfax gave a speech in Indiana supporting ratification of the Amendment.  The following passage of his speech is often quoted by people who think the Privileges or Immunities Clause goes beyond expansion of protection for rights that were already mentioned in the Constitution:

We passed a bill on the ninth of April last, over the President’s veto, known as the Civil Rights Bill, that specifically and directly declares what the rights of a citizen of the United States are—that they may make and enforce contracts, sue and be parties, give evidence, purchase, lease and sell property, and be subject to like punishments. That is the last law upon the subject.

By the “Civil Rights Bill” Colfax meant the Civil Rights Act of 1866 (CRA).  I would like to explain why I don’t think this excerpt from Colfax really suggests that the Privileges or Immunities Clause goes beyond protecting pre-existing constitutional rights from infringement by the states.

Colfax was not suggesting that the CRA protected rights absolutely, and instead his comments later in the same speech confirm that the CRA only required as much protection as white citizens got: “I want this great doctrine, that there shall be equality before the law, placed where it can not be repealed, that no state shall deny to any person the equal protection of life, liberty and civil rights.”  The plain text of the CRA confirms that it was all about equality, and newspapers in 1866 confirm that “the Civil Rights Bill is solely to provide the equal protection of law.”

Even though Colfax was referring to equality rights listed by the CRA, he still identified those with “the rights of a citizen of the United States.”  Those equality rights would go beyond the type of rights already protected by the text of the Constitution, while also leaving out many absolute rights already protected by the text of the Constitution.  Did Colfax really mean to do that?  I doubt it.

Colfax said the CRA “declares what the rights of a citizen of the United States are” but scholars who now rely upon that statement usually say Colfax was setting a floor and no ceiling for the meaning of the Privileges or Immunities Clause.  But one could just as implausibly infer a ceiling and no floor, from what Colfax said in this 1866 speech.  More likely than talking about floors or ceilings, he was probably just talking about what the rights of a citizen of the United States are under the CRA.  After all, the Constitution in 1866 already included many absolute rights of citizens that were not within the scope of the CRA’s equality requirements, and some of those constitutional rights were even applicable against both the federal government and the states.  Surely Colfax understood that.

Consider how narrow the CRA was by today's standards, even aside from its limitation to equality rights.  Supporters of the CRA argued that the exclusio unius rule of interpretation applied to the CRA’s listing of rights, so that many rights would not be within the CRA’s scope even if that scope extended to absolutely protecting the listed rights.  For example, the rights to vote and hold office were not in the CRA given expressio unius, and also given the notion shared by many congressmen that “civil rights” did not include “political rights.”  And, the Bill of Rights was excluded from the CRA as well, given that it contained absolute rights instead of equality rights.  Regarding the constitutional right of eligible citizens to seek and hold office, that right, like the Bill of Rights at that time, was only applicable against the federal government, but they were all rights of U.S. citizens even though the Fourteenth Amendment had not yet been ratified.

So, when Colfax said that the CRA declares what the “rights of a citizen of the United States” are, he probably meant in context the rights of a citizen of the United States that Congress had decided to recognize and protect, not other rights even if they already were in the Constitution.  The CRA did not necessarily recognize rights of U.S. citizens that were already in the Constitution, and conversely the Privileges or Immunities Clause did not necessarily recognize rights of U.S. citizens that were already in the CRA.


Executive Power and the DACA Case
Michael Ramsey

Kevin Fandl (Temple University - Fox School of Business and Management) has posted Presidential Power to Protect Dreamers: Abusive or Proper? (Yale Law & Policy Review, Vol. 36, No. 1, 2018) (17 pages) on SSRN.  Here is the abstract:

Many young undocumented immigrants brought to the United States as children, affectionately known as “Dreamers,” enjoy substantial protection from deportation under the Deferred Action for Childhood Arrivals (DACA) program. President Trump’s administration is attempting to withdraw this protection, purportedly in an effort to promote the rule of law by limiting executive overreach into matters of congressional concern. This Essay argues that the attempted rescission of DACA is not only out of step with broadly held American values, but premised on a flawed vision of the relationship between the legislative and executive branches. Our constitutional tradition wisely grants the President flexibility to make social policy through enforcement discretion, within the broad legal contours drawn by Congress. DACA is a legitimate exercise of that presidential power.

Maybe.  I want to focus on the second-to-last sentence of the abstract: "Our constitutional tradition wisely grants the President flexibility to make social policy through enforcement discretion, within the broad legal contours drawn by Congress."  I think that is probably right.  It's part of the checking function of separation of powers: the legislative branch makes law, but it depends on an independent branch, the executive, to enforce the law.  The executive cannot refuse to enforce the law altogether (rather, the executive must take care that it is faithfully executed) but the executive can modify a law's harsher or undesirable aspects through enforcement discretion.  DACA (or at least some aspects of it) can be seen as modifying a harsh aspect of the immigration laws.

However: this view of executive enforcement discretion is contrary to a competing view of the President's "faithful execution" obligation, as expressed most forcefully in the recent article by Andrew Kent, Ethan Leib and Jed Shugerman in the Harvard Law Review: Faithful Execution and Article II.  As I understand the paper, a central proposition is that the President may not use policy disagreement as a ground for nonenforcement (although the President might choose not to enforce for practical reasons such as resource constraints).  On this view, DACA cannot be justified as constitutional enforcement discretion based on social policy (although it might still be justified as an exercise of power delegated by the statute).

And a further thought, which really isn't addressed in the paper despite its strong conclusions: if DACA is an exercise of "mak[ing] social policy through enforcement discretion," the President should not be limited in his ability to reverse it.  An exercise of presidential discretion is, by definition, discretionary.  The current President's view -- that the DACA program goes beyond the President's duty of faithful execution -- may be incorrect, but it is at least plausible (as the Kent et al. article suggests).  And a core check on a President's power to "make social policy through enforcement discretion" is the electorate's power to replace him with a President who sees the policy in a different light.


A Response to Professor Ramsey on the Paradox of Originalism
David Weisberg

I appreciate Prof. Michael Ramsey’s thoughts responding to my note.  My note is a glimpse of a much deeper critique of original-public-meaning originalism, which can be found here and here on SSRN.
Prof. Ramsey agrees “as a theoretical matter” with what I call the Paradox of Originalism:

If the antiquity of the Constitution justifies the rebuttable presumption that some or all of the words or phrases in the Constitution have time-dated original meanings that differ from their current meanings, then the roughly equivalent antiquity of secondary literary materials that are roughly contemporaneous with the Constitution justifies the rebuttable presumption that some or all of the words or phrases in those secondary literary materials have time-dated original meanings that differ from their current meanings.

He also seems to accept that ignoring the Paradox plunges the conscientious originalist into an infinite regress.  He refers to “mostly solving” the infinite regress problem; this seems to acknowledge a genuine problem.  These are two important points of agreement.

There are, however, nits to pick.  I’ll downplay smaller nits—I continue to challenge anyone to identify one word in the Constitution that had, per the definitions and etymologies in the current Oxford English Dictionary, a definition that was valid in 1788 but is no longer valid today—and go to the biggest. 

Prof. Ramsey asserts: “[O]riginalism is (or should be) based on a rebuttable presumption that the words [in the Constitution] have not changed meanings (and dictionaries can be used to confirm this).  Justice Scalia approached the project in exactly this way.” (Emphasis original, brackets added.)

I certainly agree that originalism “should be” based on that presumption—that follows from the Paradox.  But, was Scalia’s originalism based on that presumption?  I vote ‘no’, for three reasons.        

First, I cannot find in Scalia’s speeches, writings, interviews or opinions any reference to anything resembling the Paradox, or to the infinite regress it foreshadows.  Given Scalia’s decades-long interest in originalism, he surely would have noted this danger, if he had been aware of it.  I believe Scalia made no such reference because the Paradox simply never occurred to him. 

Secondly, Scalia called all the permutations of his theory ‘originalism’.  To me, it’s simply bizarre that a theory that presumes words do not have original meanings that differ from current meanings should be called ‘originalism’.  Why call it ‘originalism’, if not to indicate that original meanings probably differ from, and thus are more important than, current meanings?  If original meanings are presumed to be identical to current meanings, a better name would be ‘identicalism’ (see, my paper “Originalism is Dead…Long Live Identicalism!”).

Thirdly, here is a tiny sampling of what Scalia wrote about the underpinnings of originalism:

“[T]he Great Divide with regard to constitutional interpretation is not that between Framers’ intent and objective meaning, but rather that between original meaning (whether derived from Framers’ intent or not) and current meaning.”  (A MATTER OF INTERPRETATION (1997), p. 38, emphasis in original.)

And this:

“[O]riginalism is an age-old idea in our jurisprudence[.]   But it applies mostly to older documents that continue in effect: Those are the ones whose operative terms are most likely to have undergone semantic shift.” (READING LAW (2012), co-authored with B.A. Garner, p. 78.)

Why posit a “Great Divide” between original and current meaning, if one presumes that the two meanings are identical

And if terms in older documents, including the Constitution, “are most likely to have undergone semantic shift,” and if “semantic shift” has any relationship whatsoever to meanings, wouldn’t the careful originalist be compelled to presume (rebuttably) that original meaning differs from current meaning, and not the opposite?  I think so.

In contrast, Prof. Ramsey thinks Scalia presumed that original meanings are identical to current meanings.  He highlights instances in Heller and Morrison where Scalia concluded that particular words had original meanings that are identical to their current meanings.  But this is unpersuasive, because a rebuttable presumption can always be rebutted. 

Prof. Ramsey observes that Scalia compared definitions from old dictionaries with definitions from new ones.  This, too, is unpersuasive.  Whichever presumption one entertains, one relies on both old and new dictionaries.  A constitutional textualist (like myself) regularly consults, albeit indirectly, old dictionaries when he or she reviews etymological entries in the O.E.D. to verify that a particular definition pre-dates the effective date of some word or phrase in the Constitution. 

In sum, I don’t believe Scalia presumed that original meanings are identical to current meanings.  I believe he presumed the opposite and never had any awareness of the Paradox. 

Prof. Ramsey correctly notes that I draw a distinction between words and phrases.  But the most important justification for that distinction is irrelevant here.  Originalists assert (correctly) that ordinarily we look for public meanings, not secret meanings.  But certain phrases (not words) in the original Constitution—specifically, those phrases concerning the institution of slavery—do have coded, secret meanings.  That fact is irrelevant to this discussion.

Prof. Ramsey cites what Justice Scalia called his “legacy opinion,” D.C. vHeller, as exemplifying how originalism should work.  For me, this is deeply ironic, because I’ve argued that Heller is both logically incoherent and also reaches the wrong result.  The incoherence is blatant.  At the beginning of the section headed “Meaning of the Operative Clause,” Justice Scalia writes: “[I]t has always been widely understood that the Second Amendment…codified a pre-existing right.” (554U.S.592)  The emphasis is all Scalia’s.  Six pages later, we find: “Does the preface fit with an operative clause that creates an individual right to keep and bear arms?  It fits perfectly[.]”  So, the right referred to in the operative clause morphs from one that pre-exists (with emphasis) the amendment, into one the amendment “creates”.  Interesting.  (How and why Heller reaches the wrong result is explained here.)

One last thought.  The advent of corpus linguistics will, I predict, provide a true test of contemporary originalism.  Corpus linguistics analyzes millions of foundation-era pages, only a tiny fraction of which come from dictionaries, with a view towards clarifying original meanings in the Constitution.  The results can be far removed from current meanings.  E.g., a recent note in this blog, to which I responded, suggested that, based on a corpus linguistics analysis, the Second Amendment protects only the right of the people to serve in a well-regulated State militia, with no direct reference to “arms” or any “right of the people to keep and bear arms”.  If one presumes that original meanings differ from current meanings, such a result might not be surprising.  Nevertheless, I think every serious student of the Constitution should ask: If that’s what the framers meant, why isn’t that what they wrote?  As the corpus linguistics movement proceeds to churn out ‘analyses’ that stray ever farther from current meanings, will today’s originalists ask that question?

Eric Segall on Barnett and Bernick and the Spirit of the Constitution
Michael Ramsey

At Dorf on Law, Eric Segall: A Unified Theory of Originalism and Living Constitutionalism.  From the introduction: 

A recent article by Professor Randy Barnett, one of our country's leading originalist scholars, and Evan Bernick, currently a law clerk for Judge Sykes of the Seventh Circuit, articulates what the authors call a "unified theory of originalism." Their thesis is succinctly stated in the first paragraph of their article:

Constitutional originalism is defined by a commitment to the original meaning of the letter of the constitutional text. Our thesis is that originalism must be committed to the Constitution’s original spirit as well—the functions, purposes, goals, or aims implicit in its individual clauses and structural design. We term this spirit-centered implementation 'good-faith constitutional construction.'

There is much to commend in this attempt to describe how judges should decide hard constitutional cases. In fact, absent a theory of judicial review that advocates for a clear error, strongly deferential approach (my personal preference), Barnett and Bernick have articulated a powerful guide for judges to use to decide whether laws violate the Constitution.  But like most originalist scholarship that does not include strong deference, what Barnett and Bernick are suggesting is indistinguishable from how most so-called living constitutionalists think judges should decide cases. They could have titled their piece "A Unified Theory of Judicial Review for Originalists and Living Constitutionalists," and they would not have had to change a single word.

And from later on:

In this article, [Barnett] and Bernick now contend that "construction not only can but must be originalist." The authors claim that "[g]ood-faith constitutional construction seeks to implement the Constitution faithfully by ascertaining and adhering to the original functions of the constitutional text—its 'spirit.'”


How should judges ascertain the Constitution's "spirit" when the text itself does not resolve the problem at issue? The answer is that because the Constitution "was the product of deliberate human design rather than uncoordinated human action . . .we can attempt to reverse engineer the design from close examination of its workings. But we can also seek out the explanations left behind by its designers. Even if these explanations were not published, they would still help us to understand the functions of each constituent part."

Quoting, of all people the person who first coined and then rejected the term "originalism," Professor Paul Brest, Barnett and Bernick say that even "Brest acknowledged that the 'general purposes' of constitutional provisions are ascertainable and that it is 'a perfectly sensible strategy of constitutional decisionmaking' to seek to adhere to them."  Barnett and Bernick approve of Brest's belief that a “moderate intentionalist applies a provision consistent with the adopters’ intent at a relatively high level of generality, consistent with what is sometimes called the purpose of the provision." The moderate intentionalist “'attempts to understand what the adopters’ purposes might plausibly have been, an aim far more readily achieved than a precise understanding of the adopters’ intentions.'”

So here we are. A judge engaged in good-faith constitutional construction should attempt to discover the general purposes of the Constitution, sometimes at a "relatively high" level of generality, and then apply those purposes or spirit to the case at hand. When doing so, we don't ask how the framers or ratifiers would have answered questions they could not have anticipated, like the constitutionality of bans on violent video games, nor are judges bound by the framers' specific expected applications of vague text to questions they did anticipate, like whether women have the right to be lawyers, if those conclusions were based on what judges today think are mistakes of fact.

It should now be obvious to the reader that there is a lot to commend in this "unified originalist theory" but that this approach also leaves judges enormous discretion to decide hard cases, and more importantly, is exactly how the Supreme Court has been deciding cases for centuries. In other words, non-originalists would agree with this approach, though they may call it something different, like pluralistic or living constitutionalism, because everyone agrees the general purposes of the Constitution should be applied faithfully by judges, but modern judges may have new facts available to them which justify judges not abiding by the specific applications of the principles adopted by the framers. Everyone, that is, except folks like Bork, Berger, and myself, who advocate(d) for an extremely limited and deferential system of judicial review.


Justice Gorsuch is Everywhere
Michael Ramsey

So it seems.  Does he have a book coming out?  

Here are few of his appearances:

Time Magazine: Justice Neil Gorsuch: Why Originalism Is the Best Approach to the Constitution (book excerpt).  From the introduction:

Originalism teaches only that the Constitution’s original meaning is fixed; meanwhile, of course, new applications of that meaning will arise with new developments and new technologies. Consider a few examples. As originally understood, the term “cruel” in the Eighth Amendment’s Cruel and Unusual Punishments Clause referred (at least) to methods of execution deliberately designed to inflict pain. That never changes. But that meaning doesn’t just encompass those particular forms of torture known at the founding. It also applies to deliberate efforts to inflict a slow and painful death by laser. Take another example. As originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet. Or consider the Fourth Amendment. As originally understood, it usually required the government to get a warrant to search a home. And that meaning applies equally whether the government seeks to conduct a search the old-fashioned way by rummaging through the place or in a more modern way by using a thermal imaging device to see inside. Whether it’s the Constitution’s prohibition on torture, its protection of speech, or its restrictions on searches, the meaning remains constant even as new applications arise.

Wall Street Journal, Weekend Interview: The High Court’s Rocky Mountain Originalist -- Justice Neil Gorsuch discusses his new book, the dangers of the administrative state, and why the Constitution’s meaning never changes. From the beginning:

Justice Neil Gorsuch has two rules for his law clerks. “Rule No. 1: Don’t make stuff up,” he tells them. “Rule No. 2: When people beg, and say, ‘Oh, the consequences are so important,’ and when they say, ‘You’re a terrible, terrible, terrible person if you don’t,’ just refer back to Rule No. 1. And we’ll be fine.”

He is sitting in a wood-and-leather chair in his Supreme Court chambers. He’s discussing originalism, the idea that the Constitution’s meaning is the same in 2019 as in 1788. “Our Founders deliberately chose a written constitution,” he says. “Its writtenness was important to them. They rejected the English tradition of an unwritten constitution, because they wanted to fix certain things.”

To treat the Constitution as a “living” document, he says, is to regard it “more or less as a relic,” something kept “in the back of the church behind a screen, and you look at it as you walk by, and you move on.” But that’s “not what ‘We the People’ agreed to,” he adds. “We didn’t say five judges—or nine, or whatever—sitting in Washington get to govern 330 million people. Who would write such a thing down? Who would agree to that? That’s not a republic. I don’t know what that is, but it’s not a republic. Not a democracy.”

In his new book, “A Republic, if You Can Keep It”—a mix of speeches, reflections and excerpts from his judicial opinions, to be published Sept. 10—Justice Gorsuch makes the case, he says, that “we should all be originalists.” Consider the alternative: “What happens when judges make it up?” he asks. “Strange things happen. You start losing rights, first of all, that are in the Constitution.”

Also on Fox News: Neil Gorsuch opens up on journey to Supreme Court in Fox News special.

And here is the book: Neil Gorsuch, A Republic, If You Can Keep It (Crown Forum, Sept. 10, 2019).

Justice Neil Gorsuch reflects on his journey to the Supreme Court, the role of the judge under our Constitution, and the vital responsibility of each American to keep our republic strong.
As Benjamin Franklin left the Constitutional Convention, he was reportedly asked what kind of government the founders would propose. He replied, “A republic, if you can keep it.” In this book, Justice Neil Gorsuch shares personal reflections, speeches, and essays that focus on the remarkable gift the framers left us in the Constitution.
Justice Gorsuch draws on his thirty-year career as a lawyer, teacher, judge, and justice to explore essential aspects our Constitution, its separation of powers, and the liberties it is designed to protect. He discusses the role of the judge in our constitutional order, and why he believes that originalism and textualism are the surest guides to interpreting our nation’s founding documents and protecting our freedoms. He explains, too, the importance of affordable access to the courts in realizing the promise of equal justice under law—while highlighting some of the challenges we face on this front today.
Along the way, Justice Gorsuch reveals some of the events that have shaped his life and outlook, from his upbringing in Colorado to his Supreme Court confirmation process. And he emphasizes the pivotal roles of civic education, civil discourse, and mutual respect in maintaining a healthy republic.
A Republic, If You Can Keep It offers compelling insights into Justice Gorsuch’s faith in America and its founding documents, his thoughts on our Constitution’s design and the judge’s place within it, and his beliefs about the responsibility each of us shares to sustain our distinctive republic of, by, and for “We the People.”


Second Amendment Originalism and Mental Illness
Michael Ramsey

From Michael Buschbacher (Sidley): 

I wanted to send you a quick note about a Second Amendment case that I and a few of my colleagues recently picked up in connection with Sidley’s Supreme Court Clinic at Northwestern. The case is Beers v. Attorney General, No. 17-3010 (3d Cir.). It presents the same issue as Tyler v. Hillsdale County Sheriff from a few years ago in the Sixth Circuit: can the government permanently strip a mentally healthy and law abiding citizen of his second amendment rights solely because of a prior involuntary commitment? The Sixth Circuit said “no,” but the Third recently said “yes,” applying a misguided form of something like original methods originalism. As it explained things, while there were no founding-era laws disarming people because of mental illness, the founding generation “saw a danger in providing mentally ill individuals the right to possess guns,” regardless of the “[p]assage of time and evidence of rehabilitation.” As we explain in [our] petition for rehearing/rehearing en banc, however, this is demonstrably wrong. Blackstone, for instance, says that “the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed” and the person’s rights restored. 1 William Blackstone, Commentaries *304-05.

The Third Circuit opinion in Beers is here.  From the historical discussion (footnotes omitted): 

Even though he claims to be rehabilitated, Beers cannot distinguish himself from the historically-barred class of mentally ill individuals who were excluded from Second Amendment protection because of the danger they had posed to themselves and to others.


Traditionally, individuals who were considered dangerous to the public or to themselves were outside of the scope of Second Amendment protection. Although laws specifically excluding the mentally ill from firearm possession did not begin appearing until later, such laws were not necessary during the eighteenth century. At that time, judicial officials were authorized to “lock up” so-called “lunatics” or other individuals with dangerous mental impairments. Thus, courts analyzing the traditional justifications for disarming the mentally ill have noted that “if taking away a lunatic’s liberty was permissible, then we should also find the ‘lesser intrusion’ of taking his or her firearms was also permissible.”

The historical record cited in Binderup supports this conclusion. In Binderup, we turned to the precursor to the
Second Amendment, the Address and Reasons of Dissent of the Minority of the Convention of the State of Pennsylvania to Their Constituents. That Address states that citizens did not have a right to bear arms if they had committed a crime. The Address goes on to note that citizens were excluded from the right to bear arms if they were a “real danger of public injury.” We can therefore ascertain that the traditional justification for disarming mentally ill individuals was that they were considered dangerous to themselves and/or to the public at large.

In a footnote, the court acknowledged the split with the Sixth Circuit in Tyler and added: "For the reasons we have stated above, we disagree that there is an absence of historical evidence that mentally ill individuals, who were considered a danger to themselves or to others, were banned from possessing guns."

The Sidley brief is here.  In part it argues:

The cited history [in the opinion], however, showed only that those who were dangerously mentally ill could be “locked up” and, a fortiori, could also be disarmed at the time of the founding. Op.16 (citing Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1377 (2009) (quoting on Henry Care, English Liberties, or the Free-born Subject’s Inheritance 329 (6th ed. 1774))). This does not support the panel’s “deduction” that such deprivations could be permanent, regardless of recovery. Op.16 n.43. Our common law tradition has “long recognized that mental illness is not a permanent condition.” Tyler, 837 F.3d at 710 (Sutton, J., concurring). Thus, as one leading founding-era legal treatise explained, “[a] lunatic is never to be looked upon as irrecoverable.” Anthony Highmore, A Treatise on the Law of Idiocy and Lunacy 73 (1807). And “the law always imagines, that the[] accidental misfortunes [that caused the lunacy] may be removed” and the person’s rights restored. 1 William Blackstone, Commentaries *304-05. Even the sole historical source on mental illness that the panel relied upon explains—on the same page that the panel looked to—that “[a lunatic] is to be kept … locked up only so long as such lunacy or disorder shall continue, and no longer.” Care, supra, at 329.

Interesting case (and thanks for the pointer).  Maybe a Supreme Court candidate, if the Court is looking for some incremental Second Amendment cases.


A Reply to David Weisberg on Second Amendment Originalism
Neal Goldfarb

I thank David Weisberg for his comments two weeks ago on my amicus brief in New York State Rifle & Pistol Assn. v. City of New York. I’d like to take this opportunity to respond to what he says about my brief and the analysis that it’s based on. My response will deal with only a small part of Mr. Weisberg’s comments, because while his post was prompted by my brief, for the most part it discusses issues that are only tangentially related to what I’ve written.

Mr. Weisberg sums up my interpretation of the Second Amendment’s main clause as being something like, “The right of the people to serve in the well regulated Militia of a State, shall not be infringed.” I’ll accept that for now, although I haven’t said anything about the meaning of well regulated or militia. But those issues aren’t what I want to talk about here.

Mr. Weisberg asks, rhetorically, “If that is what the framers meant, why isn’t that what they wrote?” My answer is that that is what they wrote (although the “well regulated” part wasn’t stated explicitly in the main clause) but they wrote it using a phrase (bear arms) that is no longer understood to mean what it was understood to mean in the 18th century.

From the vantage point of 2019, it seems natural to assume that the basic meaning of bear arms was ‘carry weapons’ and that the idiomatic military sense of the phrase was a figurative extension of that literal meaning. That’s certainly what I thought before I started looking at the corpus data. But the corpus data and other evidence provides powerful reasons to think that that assumption is unfounded. I discussed some of those reasons in my brief:

bear.  The data shows that although bear was some­­times used to mean ‘car­ry,’ it was not generally syn­­on­y­mous with carry, and the ways that it was used—i.e., the meanings that it was used to convey—were quite different from carry’s. While carry was often used to denote the physical carrying of tangible objects (e.g., carry provisionscarry goodscarry baggagecarry sup­plies), bear was seldom used that way.

In fact, in a book published in 2014, six years after Heller was decided, the chief etymologist for the OED reported on a study in which, among other things, he tried to determine when carry took over from bear as the verb generally used to mean­ ‘carry.’ He concluded that “in the ancestor of modern standard En­g­lish,” it was “very likely that carry was the basic word in this meaning by the seventeenth century (at least).” Thus, the transition from bear to carry ap­pears have been complete long before the Second Amend­ment was proposed and ratified. That fact alone casts serious doubt on Heller’s conclusion that the “natural meaning” of bear arms was essentially a var­iation on ‘carry weapons.’

arms.   The definitions for arms did not present the same problem of changed meanings as did those for bear, but they didn’t adequately reflect the range of the word’s usage and they gave no indication of the relative frequency with which varying uses occurred.

Samuel Johnson’s dictionary listed four potentially relevant senses for arms (of which Heller discussed only the first)….

But Johnson included no idiomatic phrases using arms, despite the fact that there existed many phrases in which arms was used figuratively, in a variety of military-related meanings. Sixty such phrases can be found in the corpus data….

Moreover, idiomatic uses such as these accounted for about 54% of the corpus data, overall.…

This information enables one to view bear arms in a new light, especially when considered together with the fact that bear was not ordinarily used to mean ‘carry.’ What it suggests is that even before looking at the corpus data for bear arms, there is reason to think that the phrase was ordinarily used in an idiomatic rather than literal sense; after all, bear didn’t generally mean ‘carry’ and arms was very often used figuratively rather than literally. But the Court’s starting point in Heller was the complete opposite of that.

bear arms.   The corpus data on bear arms was fully con­sis­tent with what one would expect from Amicus’s find­ings as to bear and keep….[Out of 531 concordance lines,] Amicus categorized 503 lines (almost 95% of the total) as conveying the idio­matic military sense. Amicus categorized only 11 lines (2%) as unambiguously using bear arms to mean ‘carry weapons,’ and only seven of those as arguably using the phrase to convey what Heller said was its “nat­u­ral meaning”: essentially, ‘carry weapons in order to be pre­pared for confrontation.’ Going by Amicus’s categori­zation, therefore, only 1.3% of the con­cordance lines can reasonably be thought of as supporting the Heller inter­pretation.

Although my brief didn’t address the question of why the idiomatic sense of bear arms survived the general replacement of bear by carry, I discussed the issue in one of my blog posts on bear arms:

There is reason to think that the figurative uses of arms can be traced back to before the word became part of the English language. Arms came into English via Anglo-Norman (the version of Old French spoken in England after the Norman Invasion), and some of the figurative uses can be traced back to Anglo-Norman. One of those figurative uses was the porter armes (meaning ‘serve as a soldier, fight for a country or a cause’ (OED); literally, ‘carry weapons’),  which was the predecessor of bear arms in its military sense. And the use of bear arms in that sense in English has been traced back to the beginning of the 14th century—almost as far back as the use of arms in any sense.

What all of this suggests is that the military sense of bear arms didn’t necessarily develop out of the literal use of bear arms in English. Rather, it was most likely absorbed into English as a full-blown idiom (with porter translated into bear) at roughly the same time as the literal use of arms. That conclusion is supported by the OED, which includes this etymological note in its entry for bear arms: “After Anglo-Norman and Old French, Middle French porter armes (c1100 in this sense; French porter armes).”

As the corpus data shows, bear arms was also used in the sense of ‘carry weapons,’ but the corpus data suggests that as the literal use of bear came to be replaced by the use of carry, the literal use of bear arms declined and was largely  replaced by carry arms. As discussed earlier in this post (and as I’ll discuss further in the next post), the data for bear arms includes only a handful instances in which bear arms was used literally. In contrast, in the data for carry arms, more than half the uses are literal. And as is discussed in my post on bear, the pattern of usage of bear was by the second half of the 18th century quite different from the pattern for carry.

All of this is consistent with—and may well help to explain—the fact that the corpus data for bear arms is dominated by uses conveying the phrase’s idiomatic military meaning. … It seems reasonable to think that the persistence of bear in bear arms is attributable to the fact that the phrase was an idiom and therefore that its meaning was, by convention, associated with the phrase as a whole, rather than being derived compositionally from the separate meanings of bear and arms. Presumably the association of the phrase with the idiomatic meaning was stronger than the association of bear with the meaning ‘carry,’ which would have weakened over time as carry pushed bear out of the niche it had previously occupied. If, as seems likely, bear arms occupied a separate niche of its own, it would have been more or less unaffected by the competition between carry and bear—which was largely, but not completely, won by carry.

Historians who are critical of Heller often accuse the Justice Scalia and gun-rights advocates of “presentism”—of looking at historical events from a present-day perspective, without taking enough account of the social and political context in which events occurred. Whether or not that accusation is justified, it seems to me from what I’ve seen that almost everyone who has written about the Second Amendment has been guilty of linguistic presentism.

That’s presumably what led Mr. Weisberg to ask, “If that [bear arms = ‘serve in the militia’] is what the framers meant, why isn’t that what they wrote?” Despite having read my brief (and possibly some of the underlying blog posts?) he was apparently unable to wrap his head around the idea that for founding-era Americans, “the right of the people to…bear arms” might have been understood to mean ‘the right of the people to…serve in the militia.’