« September 2019 | Main | November 2019 »

43 posts from October 2019


Bruce Frohnen on Originalism and Natural Law
Michael Ramsey

At Law & Liberty, Bruce Frohnen (Ohio Northern): Originalism Is Beside the Point.  From the introduction: 

Originalism has gained wide acceptance, at least in the limited sense that most academics and judges feel constrained to signal respect for the original meaning and generalized intentions of the Constitution. Unfortunately, this “acceptance” has done little to slow the pace of judicial law making that undermines our constitutional order. The reason is not hard to find, though it has become so deeply ingrained in the legal profession as to generally escape examination: lawyers share the prejudice that law is the product of judicial will, such that judges have a duty to pursue (or impose) justice by making and re-making rather than finding law. 

Alternative views among lawyers are hard to find. Few judges or academics today are willing to encounter elite derision by defending traditional natural law; few even are willing to risk such derision by defending Lon Fuller’s softer version of natural law, holding that law has an internal morality such that decrees that are self-contradictory, impossible to obey, continually changing, or secretly enacted cannot fairly be deemed “law,” no matter their pedigree. But these understandings lay at the heart of our constitutional order; they were shared almost universally by the founding generation and shaped the drafting and interpretation of the Constitution, as well as its Amendments and legal decisions, for generations—indeed up until quite recently, historically speaking.


Not coincidentally, natural law remains an object of derision and/or manipulation. For some lawyers today natural law is simply a sham—nonsense used to cover policy preferences, best ignored by interpreters even though it was constantly invoked during most of our history. For others, natural law is a code of conduct dictating specific, logically derived laws and policy provisions. For still others, natural law equals natural rights, which, despite the vast wealth of evidence to the contrary, dictates radical individualism as a relentless goal of constitutional government. 

Philip Hamburger gets us much closer to the truth when he points out that, during the founding era, “natural law typically was assumed to be the reasoning on the basis of which individuals adopted constitutions and a means by which the people could measure the adequacy of their constitutions.” As used by the people in public discourse this characterization seems indisputable. But we must look further, or deeper, for the grounds of proper constitutional interpretation.

The deep structure of constitutionalism in the United States lies in the traditions of common law and chartered rights brought over from England. It also lies in what I would call the natural law mind. This natural law mind embodies an understanding of our nature and natural goals that not so long ago was almost universally accepted in the United States and remains deeply powerful outside the halls of academe and of politicized justice. 

I get nervous when originalists talk about natural law (even though the framers believed in natural law), because I suspect it means they are going somewhere other than where the text's original meaning indicates.  But I confess I do not understand this post's title, so likely I don't understand other aspects of it as well.


Ilan Wurman: In Search of Prerogative
Michel Ramsey

Ilan Wurman (Arizona State University (ASU) - Sandra Day O'Connor College of Law) has posted In Search of Prerogative (70 pages) on SSRN.  Here is the abstract:

The standard formalist account of Article II’s executive vesting clause is that “the executive power” refers to all the powers and authorities possessed by the executive magistrate in Great Britain prior to the Constitution’s adoption, subject to the assignment of such powers and authorities to the other departments of the national government. In recent papers, Julian Mortenson and John Harrison independently challenge this “residual vesting” thesis by amassing evidence that “the executive power” textually referred only to the power to carry laws into execution, and not to the bundle of royal prerogatives — for example over foreign affairs and national security — enjoyed by the king in Great Britain. According to the advocates of both accounts, the scope and nature of the executive is dramatically altered depending on which account one adopts.

This Article dissents from both views. The executive power was indeed about law-execution, and was not a residual grant of power; but, I argue, both the founding generation and their key guide, Blackstone, likely shared a “thick” understanding of this “executive power.” Their writings and statements suggest that “the executive power,” even in its narrower law-execution sense, plausibly included the powers to appoint, remove, and direct executive officers, and to promulgate regulations, as necessary incidents to law-execution. Not only is this account consistent with Blackstone and the historical meaning of “the executive power,” it better fits the available data from the Constitutional Convention and early practice than either of the other two accounts. The residual vesting thesis requires us to believe that the Committee of Detail ignored the instructions of the delegates in the Constitutional Convention; to infer that the delegates themselves were unaware of the implications of what they had written; and to ignore the fact that not a single opponent of the Constitution during ratification as much as mentioned the possibility of a residual grant. On the other hand, the law-execution thesis, at least a “thin” version of it, requires us to ignore centuries of practice and precedents in foreign affairs as well as domestic matters. The “thick” view of “the executive power” advanced in this Article is the theory of best fit: it is the only one that fits the text, the Framers’ apparent intent, and the historical practice. The upshot of this approach is that the President probably has more power in the domestic sphere than under a thin law-execution account, but less in foreign affairs than under the residual account.

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

(This is the third major article this year attacking the main contention of The Executive Power in Foreign Affairs.  I feel a bit beleaguered.)


Does Impeachment Require a Crime?
Michael Ramsey

Popular commentary is suddenly awash with articles claiming that impeachment (and conviction and removal from office) do not require proof of a crime.  Examples include Ezra Klein at Vox (“High Crimes and Misdemeanors,” explained), Elizabeth Drew in USA Today (You don't have to break a law to be impeached. Trump's defenders need a better argument) and Frank Bowman in The Atlantic (The Common Misconception About ‘High Crimes and Misdemeanors’).  What's notable from an originalist perspective is how originalist these articles are.

Drew, for example, writes that "the Founders left enough guidance to make it clear that an impeachable or convictable offense need not be a crime."  Professor Bowman (Missouri), after nine paragraphs on pre-drafting English history (going back to 1376) and the drafting and ratifying debates, concludes that "one point on which the founding generation would have been clear was that 'high Crimes and Misdemeanors' was not restricted to indictable crimes."  Klein reviews the drafting debates and concludes that  "'misdemeanors' did not mean then what it means now" and that "Abuse of power may not be a crime. But it is absolutely a high crime and misdemeanor."

My point here is not whether these assertions are right or wrong (I find them persuasive, at least without contrary evidence).  The point is that they rely heavily on conclusions about founding-era meaning to displace what they concede to be a possible contemporary meaning.  And they are very sure about their conclusions (Drew says it's "clear", Bowman says it's "beyond serious dispute", Klein is "absolutely" sure of his answer).

I believe that historical meanings of constitutional phrases can often be understood today with enough confidence to resolve modern controversies.  But even I might be a little more circumspect in claiming to have identified definitive historical meaning.

Critics of originalism have gone much further, arguing first that trying to find definite meaning in an ancient document like the Constitution is a misguided historical endeavor, and second that giving binding force to that meaning is a radical and misguided view of how our law does and should operate.  On the first point, professional historians in particular have criticized the academic foundations of the originalist enterprise as ahistorical.  Shouldn't these critics now argue that claiming a definite and binding historical meaning of "high Crimes and Misdemeanors" is misguidedand unattainable?

As I've written before in connection with the emoluments litigation, I think the popular reach for originalist arguments in these circumstances refutes the most foundational critiques of originalism: it's neither radical nor unworkable to look to founding-era meaning to resolve modern disputes.  The debate over originalism is really just about whether we should do so consistently, or only when it suits our purposes.


Eric Segall on Discretionary Originalism
Michael Ramsey

Ar Dorf on Law, Eric Segall: Discretionary Originalism: A Short Response to Professor Solum.  From the introduction:

Professor Lawrence Solum kindly "recommended" a forthcoming essay of mine in the George Washington On-Line Law Review [Ed.: noted here]. This piece argues that Solum made a concession in his latest article on Originalism that demonstrates there is no meaningful difference between the so-called New Originalism and Living Constitutionalism. On his blog, however, Solum also said the following about my argument:

I would note that Segall's contention that "current originalist theory" gives judges "discretion" "to pick and choose which facts are relevant and which ones have changed since the text at issue was originally ratified" does not accurately represent my understanding of my own views.  The Constraint Principle requires judges to adhere to the original meaning (communicative content) of the constitutional text as was fixed by linguistic and contextual facts at the time each provision was drafted, framed, and ratified.  And the Constraint Principle requires constitutional actors to engage in constitutional construction on the basis of the actual adjudicative and legislative facts at the time of application.  There are important questions regarding the division of fact finding responsibility regarding legislative facts as between different officials (e.g., appellate and trial judges versus executive and legislative officials), but I believe Segall is simply wrong in his characterization of my view as allowing "discretion"--as I understand the meaning of that term. [My italics].

I greatly appreciate the engagement, but I also feel compelled to note that this disclaimer fails to wrestle with the central evidence and arguments in my essay.

I have some thoughts on this debate which I will share in a separate post.


A Response to John Vlahoplus’ “Textualism and Title VII” [Updated with a Further Exchange]
David E. Weisberg

A recent post from John Vlahoplus criticizes my earlier post (which commented on an article by Prof. Richard Primus) for arguing “from the logic of contemporary English usage rather than early 1960s usage,” and for failing to cite “dictionaries, other reference works, or other sources from the corpus of English usage around 1964.” 

I consider myself a textualist but not an originalist (for reasons set forth here), so I don’t approach Title VII with a presumption that the words and phrases in the statute had a different meaning in 1964, when it was enacted, than they have today.  Moreover, Mr. Vlahoplus’ post makes no reference whatsoever to any change in logic, usage or meaning of any word or phrase in Title VII from 1964 until today.  In fact, he himself relies on two definitions—of ‘discriminate’ and ‘because of’—from the current, up-to-the-minute online edition of the Oxford English Dictionary, and those definitions have not changed in the interval between 1964 and today.  So, there seems to be agreement that, with respect to Title VII, current meanings and 1960s-era meanings are identical.

Mr. Vlahoplus notes that Title VII includes the word “discriminate,” and he asserts that “firing someone for being LGBTQ discriminates against them,” because it is “unjust and prejudicial.”  I agree.  But one doesn’t pluck a single word out of a statute to determine the whole statute’s meaning.  Title VII does not prohibit an employer from acting in a way that “discriminates against,” or is “unjust and prejudicial” towards, actual or prospective employees.  Either formulation would, I think, be void for vagueness.  But, in any event, the statute is much more specific.  A relevant question, e.g., is whether an employer who fires a male employee because the employee has relations with other men has “discriminate[d] against” that employee “because of [his] sex.”

Mr. Vlahoplus says the answer is yes, because that answer follows from a concept with which lawyers have long been familiar: ‘but-for causation’.  But for the male employee’s sex, he would not have been fired.  That establishes, we are told, that he was fired “because of” his sex, in violation of Title VII.  (Mr. Vlahoplus makes a point of citing a statement written in 1963: “Plaintiff suffered injuries because of the negligent operation of a cab.”  But that statement has exactly the same meaning today that it had when it was written; Mr. Vlahoplus does not even hint otherwise.  I therefore cannot imagine what special significance supposedly attaches to its origin in 1963.)

Another thing lawyers have long known is that but-for causation is typically relevant in tort cases to determine whether defendant’s actions or omissions caused some physical injury to plaintiff’s person or damage to plaintiff’s property.  That is, the concept of but-for causation was developed by common-law courts to deal with complicated causal chains that produce effects in a world governed by the laws of physics and the other natural sciences. 

The phrase ‘because of’ is not limited to the description of taxi accidents.  Sometimes it is used in statements—“He was fired because of: (a) his sexual relations with other men, or (b) his sex”—that are about motives and decisions, rather than cause and effect in the physical world.  The question then arises: can but-for causation properly be extended to questions of motivation, such as those relevant to Title VII?  I offered, in my earlier note, two reasons for concluding that but-for causation cannot be so extended.  Mr. Vlahoplus does not address either reason. 

The first reason: the Primus/Vlahoplus position, if strictly adhered to, generates plain falsehoods.  If the male employee, under oath, were to insist that he was fired because of his sex, he would have perjured himself.  If he has sworn to tell the truth, the whole truth, and nothing but the truth, he may not properly answer the question, “Why were you fired?”, by repeatedly asserting, “I’m male, and I was fired because of my sex”.  The falsity of that answer would be underlined if his employer, similarly under oath, testified along these lines: “We have employed and continue to employ many men—we don’t discriminate against males—but we fired this particular man because he had sexual relations with other men.”

The second reason is that the Primus/Vlahoplus view leads to an absurd result (and I am confident the reductio ad  absurdum argument form was invented prior to 1964): an employer simultaneously violates and does not violate Title VII.  If their view of but-for causation were correct, one could say that the male employee was fired because of his partner’s sex, rather than because of his own sex.  So, according to Primus/Vlahoplus, the employee was fired because of his sex (a violation of Title VII); but it could equally well be said he was fired because of his partner’s sex (not a violation of Title VII).  Due process is not satisfied when a tribunal arbitrarily picks one of two equally apt descriptions of some event, with the result that a defendant is found to have or not have violated the law.

Although Mr. Vlahoplus does not address either of the objections to but-for causation in the Title VII context, I continue to believe they are valid.  A man fired because of relations with another man is fired because of his sexual behavior or activity, not because of his sex; that statement has the same meaning and is just as true today as in 1964.  The proper way to outlaw discrimination based on LGBTQ lifestyles is to outlaw discrimination based on LGBTQ lifestyles.  Title VII does not currently do that.        

UDPATE: John Vlahoplus replies:

In his latest post on textualism and Title VII, David E. Weisberg fails to address both Richard Primus’ discussion of causation and my hypothetical criminal law example (a law mandating wearing only clothing historically associated with one’s sex is discrimination “because of” sex, not punishment for the act of wearing the “wrong” clothing).  He also fails to notice my statements that the terms “to discriminate” and “because of” have long had the meanings I cite.  The current Oxford English Dictionary bases the definitions on usage from well before 1964.

But let us focus specifically on causation and 1964-era usage.  Professor Primus addresses causation here, implicitly referring to authorities that date to 1964 and earlier:

If you’re tempted by the thought that firing a person for having a same-sex partner doesn’t discriminate on the basis of sex because the employer would fire people of any sex who have same-sex partners, ask yourself whether a law prohibiting people of any race to marry outside their racial groups, or to ride in a railroad car designated for people of a different race, discriminates on the basis of race. (It does.)

In 1964 such discrimination was “because of” race.  See Justice Stewart’s concurring opinion in McLaughlin v. Florida (1964), which invalidated a statute punishing nonmarital interracial cohabitation:

These appellants were convicted, fined, and imprisoned under a statute which made their conduct criminal only because they were of different races. So far as this statute goes, their conduct would not have been illegal had they both been white, or both Negroes . . .  [I]t is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.

McLaughlin v. Florida, 379 U.S. 184, 198 (1964) (Stewart, J., joined by Douglas, J., concurring) (emphasis added), here.

Substitute “because they were of the same sex” for “because they were of different races,” and it is clear that the employers’ decision to fire the Title VII plaintiffs “depend[ed] upon the sex of the actor” just as the Florida statute “depend[ed] upon the race of the actor.”   

Discrimination that depends on the sex of the actor being the same as that of his partner is “because of” his sex, just as discrimination that depends on the race of the actor being different from that of her partner is “because of” her race.   A textualist could easily conclude that firing the Title VII plaintiffs for being LGBTQ discriminated against them “because of” their sex, as many understood legal causation in 1964 in discrimination law as well as more generally in tort and contract law.

FURTHER UPDATE:  Final thoughts by David Weisberg:

Mr. Vlahopus is now 0 for 2; he has had 2 chances to address my objections to the ‘but-for causation’ analysis that was central to his original post, and he has never done so.  I think this is an admission that he is unable to do so, because his latest post does not even mention but-for causation.  Instead, he focuses on Justice Stewart’s concurrence in McLaughlin vFlorida, a 1964 case in which the Court unanimously held that a Florida statute criminalizing cohabitation by heterosexual couples of different races violated the 14th Amendment’s Equal Protection Clause.  Justice Stewart’s very brief concurrence states, in relevant part:

I cannot conceive of a valid legislative purpose under our Constitution for a state law which makes the color of a person's skin the test of whether his conduct is a criminal offense. These appellants were convicted, fined, and imprisoned under a statute which made their conduct criminal only because they were of different races…[W]e deal here with a criminal law which imposes criminal punishment. And I think it is simply not possible for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor. Discrimination of that kind is invidious per se.  (379 US at 198, footnote omitted.)  

Anyone can pick words and phrases out of any opinion, but that approach doesn’t shed any substantial light on whether Title VII (not the Equal Protection Clause), which imposes civil (not criminal) penalties, prohibits a private employer (not a State) from firing an employee who engages in homosexual activity (not activity that necessarily involve persons of different races). 

Jeremy Telman: John Marshall's Constitution
Michael Ramsey

D. A. Jeremy Telman (Valparaiso University Law School) has posted John Marshall's Constitution: Methodological Pluralism and Second-Order Ipse Dixit in Constitutional Adjudication (Lewis & Clark Law Review, forthcoming) (98 pages) on SSRN. Here is the abstract:

This Article provides a comprehensive treatment of the constitutional jurisprudence of the Marshall Court (1801–1835), addressing its relationship to contemporary originalism. Until recently, there seemed to be no need for such a study. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reaction against the perceived excesses of the Warren and Burger Courts. Originalists did not claim that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have made claims that constitutional adjudication in the United States has always been originalist. This Article maintains that such claims are doubly misleading. First, the Marshall Court invoked the Framers’ intentions but never undertook any investigation into those intentions. Second, this rhetorical intentionalism by no means predominated as the Marshall Court’s governing interpretive approach. Rather, that approach was pluralist. Historical reasoning, common law precedent, and what I call second-order ipse dixit pronouncements featured prominently in the constitutional adjudication of the Marshall Court.

The constitutional text rarely provided clear constraints on the Marshall Court’s discretion because, to borrow language from New Originalists, their cases arose in the “zone of construction” where original meaning “runs out.” Justices chose among plausible arguments about the Constitution’s meaning. At key points, the Justices simply declared what the law was, not without justification, but also not based on evidence of the Framers’ intent or the original meaning of the constitutional text.

Professor Telman presented this paper at the annual originalism works-in-progress conference in San Diego in February 2019.  Mike Rappaport commented here: Chief Justice Marshall’s Textualist Originalism.


Justice Thomas on Preemption by Agency Policy
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, earlier this week the Supreme Court denied cert in Lipschultz v. Charter Advanced Services, which presented the question whether the Federal Communications Commission's "policy of nonregulation" of Voice over Internet services preempted state regulation.  Justice Thomas, joined by Justice Gorsuch, objected that the policy was not a law, and thus couldn't be preemptive in any event (some citations omitted): 

I agree with the Court’s determination that this case does not satisfy our criteria for certiorari. I write to explain why, in an appropriate case, we should consider whether a federal agency’s policy can pre-empt state law.  The Supremacy Clause of the Constitution provides:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2.

The Clause contains a non obstante provision, a common device used by 18th-century legislatures to signal the implied repeal of conflicting statutes. See PLIVA, Inc. v. Mensing, 564 U. S. 604, 621 (2011); see also Nelson, Preemption, 86 Va. L. Rev. 225, 237–242, 245–246 (2000). At the time of the founding, this Clause would have been understood to pre-empt state law only if the law logically contradicted the “Constitution,” the “Laws of the United States,” or “Treaties.” See id., at 260.

It is doubtful whether a federal policy—let alone a policy of nonregulation—is “Law” for purposes of the Supremacy
Clause. Under our precedent, such a policy likely is not final agency action because it does not mark “the consummation of the agency’s decisionmaking process” or determine Charter’s “rights or obligations.” Even if it were final agency action, the Supremacy Clause “requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures.” Wyeth v. Levine, 555 U. S. 555, 586 (2009) (THOMAS, J., concurring in judgment); ...

Giving pre-emptive effect to a federal agency policy of nonregulation thus expands the power of both the Executive and the Judiciary. It authorizes the Executive to make “Law” by declining to act, and it authorizes the courts to conduct “a freewheeling judicial inquiry” into the facts of federal nonregulation, rather than the constitutionally proper “inquiry into whether the ordinary meanings of state and federal law conflict,” Wyeth, supra, at 588 (THOMAS, J., concurring in judgment).

Agreed.  Mere federal policy should not preempt state law.  The issue is similar to American Insurance Association v. Garamendi (2003), in which the Court unfortunately held that an executive branch policy relating to foreign affairs could preempt state law (5-4, with Justices Thomas and Scalia on the right side).  I criticized that decision in this article: American Insurance Association v. Garamendi and Executive Preemption in Foreign Affairs (written with Brannon Denning of Cumberland Law School).  Fortunately the Court substantially retreated from Garamendi in Medellin v. Texas (2007) (see my further discussion here), so it shouldn't be an obstacle to getting this issue right.


Calvin TerBeek on Originalism and the Administrative State
Michael Ramsey

At House Divided, Calvin TerBeek: The GOP’s Flip Side of the Same Coin: Party Politics, Constitutional Politics, and the Administrative State.  From the introduction:

Easily missed in the tumult last week was the Supreme Court’s decision to review the constitutionality of the Consumer Financial Protection Bureau’s structure. The product of Obama era legislation and a constant source of partisan strife in its short existence, the Court is going to decide whether the CFPB head’s protection from at-will removal by the president violates the Constitution’s separation of powers—the “structural Constitution” as conservatives like to call it. The Court further told the parties to brief whether the entire agency must go if the agency head’s protection from presidential removal is held unconstitutional. Not incidentally, a group of conservative originalist law professors, the Cato Institute, and a handful of conservative public interest litigation groups filed briefs this past summer urging the Court to take the case.

News reportsliberal, and conservative analyses have focused on the legal questions and on whether Justice Scalia’s 1988 dissent in Morrison v. Olson will be “vindicated” (on which more below). But making sense of the Court’s decision to hear Seila Law v. CFPB profits from understanding the judicial and party politics that structure this choice. First, Chief Justice Roberts’ playbook in high salience areas such as this is now well established. Holding at bay the most enthusiastic conservative justices—Thomas, Alito, Scalia (†), and now Gorsuch—Roberts invites new cases where he patiently builds the requisite precedents to accomplish conservative and GOP legal policy goals methodically. Voting rights and campaign finance are pertinent examples of this strategy. Seila Law, then, should be understood as the opening salvo in what will be a line of cases where the Court will pare back aspects of the administrative state conservatives dislike. Indeed, Seila Law is part and parcel of the justices’ forays last term into agency deference and the non-delegation doctrine. As former White House counsel Don McGahn said in 2017, “There is a coherent plan here where actually the judicial selection and the deregulatory effort are really the flip side of the same coin.”


Textualism and Title VII
John Vlahoplus

Although I am not a textualist or an originalist, I find this blog's responses to Richard Primus to be off the mark.  Michael Ramsey's response here relies heavily on the fact "that Congress did not think its text had banned sexual orientation discrimination (nor, so far as I know, did anyone else at the time)."  That sounds in expected applications originalism, not textualism.  David E. Weisberg's response here argues from the logic of contemporary English usage rather than early 1960s usage.  Neither response cites dictionaries, other reference works, or other sources from the corpus of English usage around 1964. 

If textualism is to be a meaningfully independent originalist theory then it should rely on the meanings, whether thick or thin, of the words in the text at the time of enactment.  It should also have the theoretical power to produce interpretations that differ from original expected applications originalism.  For example, consider a hypothetical based on an earlier discussion here on this blog.  Congress enacts a statute providing:  "No one may travel beyond the outermost planet in the solar system."  At the time of enactment, everyone believes that Pluto is the outermost planet in the solar system.  Congress treats Pluto as a planet in subsequent legislation, such as its finding in 2002 here that "[c]ommercial reusable in-space transportation systems can . . . support potential National Aeronautics and Space Administration missions to Mars, Pluto, and other planets."

Later we learn that Neptune is the outermost planet in the solar system.  Perhaps the definition of a planet has always required a minimum size, and new exploration shows that Pluto lacks that size.  Does the statute ban travel beyond Neptune because it is the outermost planet in the solar system?  Or does it ban travel beyond Pluto because at the time of enactment many members of Congress thought that they were forbidding travel beyond Pluto?   The statute's text does not forbid traveling "beyond Pluto."  It forbids traveling "beyond the outermost planet in the solar system."  And the outermost planet is Neptune, regardless of what members of Congress thought that they were doing by enacting the statute.  A textualist might find that the statute forbids traveling beyond Neptune.

How might a textualist interpret Title VII using period sources and focusing on the meanings of the words in the statute's text?  "Discriminate" has long meant "[t]o treat a person or group in an unjust or prejudicial manner" (Oxford English Dictionary Online definition 4).  This definition appears to be consistent with Title VII.  The statute permits employers to rely on legitimate, professionally developed and honestly administered ability tests.  Making employment decisions after receiving the results of such tests is not unjust and does not pre-judge candidates.  Firing someone for being LGBTQ is both unjust and prejudicial -- as Professor Ramsey notes, "sexual orientation discrimination has a long and sad history."  Therefore firing someone for being LGBTQ discriminates against them.

"Because" when "followed by 'of' and a substantive" has long meant "by reason of, on account of" (Oxford English Dictionary Online definition 2.a).  For the ordinary lawyer, this is a simple description of causation.  A 1963 source here, for example, includes the usage "Plaintiff suffered injuries because of the negligent operation of a cab."  A well-known test of causation is but-for causation.  But for the Title VII plaintiffs' sex (their being male), would they have been fired?  No.  Therefore they were fired "because of" their sex.

This textual analysis shows that the employers discriminated against the Title VII plaintiffs because of their sex.

Another example supports this textual analysis.  Consider a criminal law providing "Everyone must wear clothing historically associated with his or her sex."  The law requires a female to wear only certain clothing "because of" her sex -- it explicitly refers to "her sex."  Consequently, if she wears historically male clothing she will be sanctioned also "because of" her sex.  But for being female, she would not be in violation of the law. 

One might argue that she is sanctioned because she did not wear the right clothing.  But that is fatuous.  What clothing is "right" is explicitly defined by "her sex."  It is also no objection that the same rule applies to males and sanctions a male if he wears clothing historically associated with females.  The law also requires him to wear certain clothing "because of" his sex; if he wears historically female clothing he will be sanctioned also "because of" his sex.  The rule treats each in an unjust and/or prejudicial manner because of (i.e., in a way that would not apply but for) his or her sex.

The amicus brief that David Upham links here at least cites a dictionary definition of "to discriminate" and argues against the Primus thesis on that basis.  That definition is "to make an adverse distinction" (brief page 22).  The brief argues that the employer can only discriminate by making an adverse sex distinction, not by accepting a distinction that society has already made (brief pages 22-23).   That definition is inconsistent with the text of Title VII, however.  For example, the statute uses the phrase "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual" because of race, sex etc. (emphasis added).  In Title VII, to "discriminate" against someone means to take an adverse action with respect to them such as to fail to hire them, consistent with the definition "[t]o treat a person or group in an unjust or prejudicial manner."  It does not mean to make an adverse distinction previously unknown to society.

There are deeper questions, such as whether textualism can actually be distinguished from intentionalism and expected applications at all; whether words derive meaning from an essence or merely by convention; whether definition consists of designation (such as designating nine things including Pluto to be planets) or of genus and difference (such as specifying that only a body that orbits a star and has a particular size is a planet); and even whether every definition is dangerous in legal interpretation, as Lord Ellesmere asserts in Calvin's Case.  If it is possible to set all of those aside and accept textualism (which is questionable), there is a strong textualist argument that the hypothetical statute bans travel beyond Neptune and that Title VII forbids discrimination against LGBTQ persons.

The President and State Prosecutions
Michael Ramsey

A recent post linked to an article by Burlette Carter on the issue of federal prosecutions of sitting Presidents.  For me this, is a non-issue because (as an original matter) I accept the idea of a unitary executive.    Anyone with federal prosecutorial power must, in this view, serve at the pleasure and direction of the President.  The President is not going to prosecute himself.  So there's no need for the Constitution to speak further to the matter.  (Further thoughts on federal prosecution of Presidents from me and others are here).

A more difficult originalist question is whether a sitting President can be prosecuted under state law.  And that issue was argued yesterday to the Second Circuit.  From NBC News (via How Appealing):  Trump's lawyers argue he can't be charged while in office — even if he shoots someone.  The background:

A panel of three federal appeals court judges appeared to be unreceptive Wednesday to President Donald Trump's claim that local prosecutors cannot get his financial records as long as he's in office — and heard an extreme hypothetical example making that case.

The long-standing view of the Justice Department is that a president cannot be indicted while in office. William Consovoy, Trump's lawyer, told the 2nd Circuit Court of Appeals that the immunity extends to the entire criminal justice process, including grand jury subpoenas for documents.

Manhattan's district attorney obtained a grand jury subpoena in August for three years' worth of financial records from the Trump Organization and eight year's worth of Trump-related business records — including Trump's personal tax records — from the accounting firm Mazars USA. Prosecutors are investigating whether Trump or his company broke any state laws when they reimbursed his former lawyer, Michael Cohen, for making hush money payments.

And the hypothetical:

Carey Dunne, New York District Attorney Cy Vance Jr.'s general counsel, said the president's position is too absolute.

There could be examples in which a state should be able to conduct a criminal investigation of a sitting president, "if, for example, he did pull out a handgun and shoot someone on Fifth Avenue."

Asked about that, [the President's attorney, William] Consovoy said a president could be charged with such a crime once he was out of office or if he was impeached and removed from office. "This is not a permanent immunity," he said.

"I'm talking about while in office. Nothing could be done? That's your position?" Judge Denny Chin asked.

"That is correct," Consovoy said.

Maybe.  But I am doubtful.  As Michael Stokes Paulsen recounts in this 2018 post, Aaron Burr was indicted while a sitting Vice President for the murder of Alexander Hamilton:

Burr was subject to criminal prosecution in both New Jersey and New York, for killing Hamilton. As soon as it became clear that there was a genuine risk that he might be indicted, possibly in both states, Burr fled New York, making his way across the Hudson to New Jersey by boat under cover of night, then continuing on to Philadelphia to wait at the home of a friend for things to cool down. They didn’t – at least not for quite some time. A New York “coroner’s jury” determined Hamilton’s death to be a homicide, the result of Burr’s bullet, and arrest warrants were issued for Burr, and for his second in the duel and Hamilton’s second as accessories. A New York grand jury dropped the murder charge in mid-August and replaced it with the lesser charge of sending a challenge to a duel, a state criminal misdemeanor. New Jersey did not prohibit dueling, but that apparently did not preclude an indictment for murder and Burr was in fact indicted for murder by a New Jersey grand jury in October.

Neither prosecution went to trial (because Burr remained outside the jurisdictions), but there do not seem to have been substantial objections on grounds of constitutional immunity.  Professor Paulsen concludes:

Can a state indict a federal officer for having committed a state-law criminal offense? (In theory, yes.) Does it matter in this regard whether the alleged offense involves official-capacity conduct? (Yes; a state cannot impair the lawful actions of federal agents or instrumentalities.) Must an officeholder be impeached before he can be indicted or tried for criminal-law offenses? (No, but any criminal-law punishment that effects a practical removal from office – like incarceration and certainly execution – would be a different matter.)

Of course, the Burr precedent does not prove that Constitution allows state prosecutions of Vice Presidents, and of course the President is in a different position from the Vice President.  But it does not seem clear from the text and original meaning either that the Vice President has blanket constitutional immunity from state prosecutions or that the President must be treated differently.