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30 posts from November 2019

11/30/2019

Saikrishna Prakash on Ratifying the Equal Rights Amendment
Michael Ramsey

In the LA Times, Saikrishna Prakash (Virginia): Sorry, Virginia, you can’t revive the Equal Rights Amendment.

In January, when a new Democratic majority takes over in Virginia, the Commonwealth likely will become the 38th state to ratify the Equal Rights Amendment. At that point, the proposal will cross the three-quarters threshold for inclusion in the Constitution, almost a half century after the amendment went to the states. Understandably, the ERA’s supporters will be jubilant. Though I endorse the ERA, I can’t join them. Virginia’s ratification will be stillborn and the Equal Rights Amendment will still be dead. Under a proper reading of the Constitution, it perished decades ago.

When Congress sent the ERA to the states in 1972, the accompanying resolution provided that that the amendment would be valid only if ratified by three-fourths of the states in a little over seven years. As that expiration date drew near, Congress extended it an additional three years. The extension was controversial because it changed the terms of the ratification period midstream, and because it was not passed with a two-thirds majority in both chambers, as the 1972 resolution had been. To add to the uncertainty, by the time of the extension, a handful of states had voted to rescind their ratifications, a move as legally murky as monkeying with the deadline.

And from later in the analysis:

To be sure, the Constitution says nothing directly about time frames for lawmaking or amendment passage, but that doesn’t mean it doesn’t speak at all on the topic. It assumes and implies a great deal. No one thinks that Congress can pass laws “inter-generationally,” with the House voting for a bill in the 18th century, the Senate in the 19th century and the president receiving it and signing it into law in the 20th. Though the Constitution does not expressly forbid this wild scenario, it implicitly does. The same is true for amendments, both their proposal and their ratification. The various acts necessary to make an amendment cannot stretch across decades or centuries.

To take another example, the Constitution requires federal legislators to muster a majority to make laws. Such “majority rule” only makes sense within time limits. If Senators voted for something 50 years ago, how could those votes reasonably be added to ones cast today by new senators to conjure up supposed majority support for a bill? Or consider the question in contractual terms: Virginia’s attempt to ratify the ERA 47 years after it was sent to the states is akin to a person attempting to accept a contractual offer made over 50 years ago. It’s impossible.

(Via How Appealing).

I'm not sure I agree as a general matter.  Certainly nothing in the Constitution says directly (or even indirectly) that ratification periods have an expiration date.  It's true, of course, that one House's passage of legislation expires, but that's implied from the nature of the legislative process.  There's nothing really analogous for amendments.  In treaty law, by contrast, the time for ratification of a treaty does not expire, unless the treaty specifies a ratification period.  I don't see why that shouldn't also be true of amendments.  (Also I like the Twenty-seventh Amendment.)

As to the Equal Rights Amendment, though, I agree on the specifics.  The initial proposed amendment specified a fixed period for ratification.  Congress extended the period by legislation, but I think that itself is unconstitutional (or, rather, has to be done by a new proposed amendment).  Congress cannot by ordinary legislation change a proposed amendment, and the specified time for ratification was part of the original agreed proposal.  Consider, for example, if the original proposed amendment specified, say, a 10 year ratification period but Congress subsequent changed that to a five-year period by ordinary legislation.  The purported shortening of the period seems plainly invalid.  So too for a lengthening.

11/26/2019

Justice Kavanaugh Provides Another Sign the Nondelegation Doctrine May be Revived
Mike Rappaport

Last term, the Supreme Court decided Gundy v. United States, which reviewed a large and largely standardless delegation of power to the Attorney General.  The Court approved of the delegation in a 5 to 3 vote, with a strong dissent by Justice Gorsuch arguing on originalist grounds in favor of the revival of a more limiting nondelegation doctrine. 

The significant fact about the case was that Justice Kavanaugh did not participate because he was not confirmed at the time of the oral argument.  As a result, Justice Alito announced that he would vote in favor of the delegation in the case.  But Alito said he would seriously consider the issue of reinvigorating the nondelegation doctrine if Justice Kavanaugh were to participate in the future and there were potentially five votes in favor of strengthening the doctrine.  But until then, he would vote in favor of the delegation.

Put aside the curiousness of Justice Alito’s position.  And put aside the puzzling fact that the Court did not order a reargument to allow Kavanaugh’s participation, even though it did so in another important case (the Knick Takings Case).  Still, this signaled that four or five members of the Court might be ready to reinvigorate the nondelegation doctrine.

Now, there is more evidence that the doctrine might be resurrected.  Justice Kavanaugh, in a statement respecting the denial of certiorari, seemed to indicate that he was open to reviving the nondelegation doctrine.  Kavanaugh wrote:

In the wake of Justice Rehnquist’s opinion, the Court has not adopted a nondelegation principle for major questions.  But the Court has applied a closely related statutory interpretation doctrine: In order for an executive or independent agency to exercise regulatory authority over a major policy question of great economic and political importance, Congress must either: (i) expressly and specifically decide the major policy question itself and delegate to the agency the authority to regulate and enforce; or (ii) expressly and specifically delegate to the agency the authority both to decide the major policy question and to regulate and enforce.

The opinions of Justice Rehnquist and JUSTICE GORSUCH would not allow that second category—congressional delegations to agencies of authority to decide major policy questions—even if Congress expressly and specifically delegates that authority. Under their approach, Congress could delegate to agencies the authority to decide less-major or fillup-the-details decisions. 

Like Justice Rehnquist’s opinion 40 years ago, JUSTICE GORSUCH’s thoughtful Gundy opinion raised important points that may warrant further consideration in future cases.

Another thing that Kavanaugh’s statement makes clear is that he would prefer the nondelegation doctrine to be framed in terms of the major questions doctrine.  When he discusses the revival of the nondelegation doctrine, he frames it in terms of “major policy questions of great economic and political importance.” 

This last point is important.  One significant advantage of employing the major questions standard to the nondelegation doctrine is that one can argue that it is an existing standard.  If the Court currently employs the major questions doctrine to determine whether Chevron deference should be given to an agency, then it is harder to argue that the same standard is too unclear to apply to questions of whether delegations are constitutional.  

Stay tuned. 

11/25/2019

Evan Bernick: Faithful Execution
Michael Ramsey

Evan D. Bernick (Judicial Clerk, Judge Diane Sykes) has posted Faithful Execution: Where Administrative Law Meets the Constitution (Georgetown Law Journal, Vol. 108, No. 1, 2019) (71 p;ages) on SSRN.  Here is the abstract:

The administrative state and administrative law are commonly understood to be the product of statutes, judicial doctrines, and agency practices rather than constitutional text. In recent years, however, federal courts have been forced to confront important constitutional questions concerning the President’s exercise of administrative discretion under broadly worded federal statutes. Among those questions: (1) Does the Constitution impose any independent constraints on the administrative discretion that is available to the President under the text of federal statutes? (2) If so, are judges obliged to determine whether that discretion has been abused? and (3) How should judges make such determinations?

This Article argues that the Take Care Clause of Article II, Section 3 constrains the President’s administrative discretion and that judges are obliged to determine whether that discretion has been “faithfully” exercised. It then constructs a faithful execution framework that judges can use to implement the “letter” — the text — and the “spirit” — the functions — of the Take Care Clause. To that end, it makes use of a theory of fiduciary government that informed the content and structure of the Take Care Clause and draws upon well-established administrative law doctrines. It uses the faithful execution framework to evaluate President Barack Obama’s 2014 Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program and President Donald Trump’s 2017 travel bans. By so doing, this Article shows that central components of modern administrative law rest upon sound constitutional foundations. It also provides judges with constitutionally inspired tools that can be used to promote presidential accountability, discipline presidential discretion, secure the rule of law, and thwart presidential opportunism.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week").

11/24/2019

Keith Whittington (and Alexander Hamilton) on Impeachable Offenses
Michael Ramsey

At Lawfare, Keith Whittington: Must Impeachable Offenses Be Violations of the Criminal Code?  From the beginning:

Supporters of President Trump have regularly argued that there can be no impeachment without a violation of the criminal code. So long as the Mueller investigation held the possibility that the president might be linked to actual criminal activity, the question of whether impeachable offenses had to be indictable crimes was not a particularly salient one for either the administration’s critics or its defenders. Given that the House has now focused its attention specifically on the administration’s actions in regard to Ukraine, the question of whether the House could constitutionally pursue an impeachment in the absence of a violation of the criminal code has become more pressing.

...

Despite what Trump’s supporters say, however, the president can commit an impeachable high crime without violating the federal criminal law. To conclude otherwise would be to ignore the original meaning, purpose and history of the impeachment power; to subvert the constitutional design of a system of checks and balances; and to leave the nation unnecessarily vulnerable to abusive government officials.

...

Examining the relevant history, however, makes clear that this understanding of impeachment is unnecessarily constrained. The constitutional framers were familiar with the impeachment device from English history, and after independence, it was quickly incorporated into American state constitutions. In English parliamentary practice, impeachment was a tool for checking the king and his ministers, and the term “high crimes and misdemeanors” developed within that practice to refer to misconduct by public officers. William Blackstone noted that “oppression and tyrannical partiality ... in the administration and under the colour of their office” could often escape ordinary justice and was therefore accountable “by impeachment in parliament.” Famously, more than a century before the American Revolution, the House of Commons had impeached the Earl of Strafford for attempting “to subvert the Fundamental Laws and Government of the Realms ... and instead thereof, to introduce Arbitrary and Tyrannical Government.” The British imperial officer Warren Hastings was embroiled in an impeachment scandal at the time of the Philadelphia Convention, and the House of Commons eventually charging him with “arbitrary, illegal, unjust, and tyrannical Acts” that rendered him “guilty of High Crimes and Misdemeanors.” ...

I'm inclined to agree.  Note, though, that it's an originalist argument (by an originalist scholar).  Nonoriginalists might want to be careful embracing it.

RELATED:  Jonathan Adler has more at Volokh Conspiracy: Hamilton on Impeachment.  Quoting Hamilton, Federalist 65:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself.

11/23/2019

New Book: Theatres of Pardoning by Bernadette Meyler
Michael Ramsey

Recently published: Theatres of Pardoning (Cornell University Press 2019), by Bernadette Meyler (Stanford).  Here is the book description from Amazon:

From Gerald Ford's preemptive pardon of Richard Nixon and Donald Trump's claims that as president he could pardon himself to the posthumous royal pardon of Alan Turing, the power of the pardon has a powerful hold on the political and cultural imagination. In Theaters of Pardoning, Bernadette Meyler traces the roots of contemporary understandings of pardoning to tragicomic "theaters of pardoning" in the drama and politics of seventeenth-century England. Shifts in how pardoning was represented on the stage and discussed in political tracts and in Parliament reflected the transition from a more monarchical and judgment-focused form of the concept to an increasingly parliamentary and legislative vision of sovereignty.

Meyler shows that on the English stage, individual pardons of revenge subtly transformed into more sweeping pardons of revolution, from Shakespeare's Measure for Measure, where a series of final pardons interrupts what might otherwise have been a cycle of revenge, to later works like John Ford's The Laws of Candy and Philip Massinger's The Bondman, in which the exercise of mercy prevents the overturn of the state itself. In the political arena, the pardon as a right of kingship evolved into a legal concept, culminating in the idea of a general amnesty, the "Act of Oblivion," for actions taken during the English Civil War. Reconceiving pardoning as law-giving effectively displaced sovereignty from king to legislature, a shift that continues to attract suspicion about the exercise of pardoning. Only by breaking the connection between pardoning and sovereignty that was cemented in seventeenth-century England, Meyler concludes, can we reinvigorate the pardon as a democratic practice.

11/22/2019

More Fun with "Officers" from Blackman & Tillman
Michael Ramsey

In The Atlantic, Josh Blackman & Seth Barrett Tillman: The Weird Scenario That Pits President Pelosi Against Citizen Trump in 2020.  From the introduction:

Assume that President Donald Trump is impeached and removed from office. At that point, Mike Pence would become president. The position of vice president would remain vacant until Congress confirmed a replacement, nominated by the president.

This shift in positions could result in a very unlikely possibility: If, prior to the confirmation of a new vice president, President Pence were to become unable to discharge the office, then Nancy Pelosi, the speaker of the House, would assume the office of the president under the Presidential Succession Act of 1947.

Or would she? Two prominent constitutional-law professors contended in 1995 that the Succession Act now in force is unconstitutional. And a recent New York Times op-ed agreed: Legislators, such as the speaker of the House, cannot be elevated to the presidency, the thinking goes.

This theory, if correct, risks throwing the United States and the entire free world into a state of chaos. The speaker and the secretary of state (the next-in-line, nonlegislative officer) could both claim, with some legitimacy, to be president. Bush v. Gore would be tame by comparison.

A better reading of the Constitution, however, gives Congress the power to place Nancy Pelosi second in line for the presidency. But, as we’ll get to below, that same reading has an unexpected implication: Contrary to common belief, after removing the president from office, the Senate cannot disqualify him from being elected to the White House a second time.

11/21/2019

Segall on Descriptive and Normative Theories of Originalism
Mike Rappaport

Eric Segall raises the important distinction between two different types of originalist theories.  One type of theory – a descriptive theory – holds that originalism has been the dominant approach to constitutional interpretation throughout American history and then uses this prevailing approach as the main (or at least one important) argument for using that approach today.  Another type of theory – a normative theory – acknowledges that originalism has not been employed for significant portions of American history, especially since the New Deal, but argues that originalism should still be employed today based on normative arguments. 

Eric places me in the latter grouping, which is correct, but with one significant amendment.  Under my approach to constitutional interpretation (written with John McGinnis), the early interpretive approaches to the Constitution, beginning at the time of the Constitution, were originalist.  Although these early approaches could differ (as with the disagreements between Thomas Jefferson and John Marshall), the various dominant approaches at the time were all versions of originalism.  It is only as the years passed, and especially beginning in the New Deal, that constitutional interpretation came to be inconsistent with originalism.  (Thus, I agree with Mike Ramsey that the early interpretations of the Constitution were originalist and that it is only over time that they become largely nonoriginalist.)       

Some advocates of the descriptive approach criticize the normative theory as “mere law reform.”  The idea seems to be that the most important arguments for originalism are based on what is the current law and that other arguments are of lesser weight.  I disagree.  If one employs a positivist theory of law, then the case for following the law may be weak, because the law might be normatively unattractive.  Moreover, in the case of the U.S. Constitution, the Constitution’s original meaning ended up being changed during the New Deal without acknowledgment of what was occurring and without constitutional amendments – a quite normatively unattractive process.    

Finally, I should clarify my position on the Originalist Positivism of scholars such as Will Baude and Stephen Sachs, who are normally treated as within the descriptive group.  In writing this post, I don’t want to be seen as necessarily rejecting their position that originalism is the law today.  Baude and Sachs have a sophisticated defense of their claim.  Whether one accepts that view turns on disputed questions within positivism and on the content of the rule of recognition.  I don’t have strong views about these matters.  But I should note two aspects of their argument.  First, the case for originalism for me does not turn on these disputed questions, but instead on a variety of other, principally, normative arguments.  Second, even if one does accept Baude and Sachs’s view of these matters, it does not change the fact that large portions of our current law do not conform to the Constitution’s original meaning.  

The Original Constitutional Meaning of Bribery as Applied to the Ukraine Scandal
Andrew Hyman

Giles Jacob wrote the leading law dictionary of the founding era, and he defined bribery as, “[T]he receiving, or offering, any undue reward, to or by any person concerned in the administration of public justice, whether judge, officer, etc., to act contrary to his duty….” 

There is also a modern federal statutory definition of bribery, but it does not seem relevant. The general federal bribery statute is at 18 U.S.C. 201, but only defines bribery “for purposes of this section,” and even then it only applies to bribing United States officials rather than foreign officials.  There is also the Foreign Corrupt Practices Act which also refers to “anything of value” but apparently does not define or even use the words “bribe” or “bribery.”  Congress could hypothetically write a statute about what it means to “bribe” a foreign official, and that statute might be relevant to the Impeachment Clause of the Constitution, but only to clarify or detail the constitutional term “bribery” rather than to enlarge or expand it; this is because the rule of construction noscitur a sociis applies, and therefore a “high crime or misdemeanor” within the meaning of the Constitution cannot be less serious than bribery and treason were in 1789. 

One of the current issues in the impeachment hearings is whether promising a visit to the White House could be enough to impeach, even if there is insufficient evidence of a monetary bribe.  As Giles Jacob wrote, “To take a bribe of money though small, is a great fault….”  So any amount of money could constitute a bribe for impeachment purposes, though the higher the better.  As to payments that basically have no market value, puny or trivial rewards probably cannot be bribery or at least cannot be high bribery.  For example, offering gratitude, applause, a pat on the back, or a public endorsement would not be enough to be what Jacob called an “undue reward.”  Probably offering a mere visit to the White House would fall into that same category.  But offering hundreds of millions of dollars would surely be enough, provided of course that it is offered to induce a violation of duty.

Another current issue is whether the Impeachment Clause refers to the President accepting bribes, as opposed to the President offering bribes.  From a textual point of view, it does not matter whether the President of the United States is the offerer or the offeree, even though the framers were probably more concerned that he would be the offeree. James Iredell  said, "I suppose the only instances, in which the President would be liable to impeachment, would be where he had received a bribe, or had acted from some corrupt motive or other" (emphasis added).  Textually, though, there is no distinction between giving and receiving a bribe, and Jacob covered both (see the first paragraph of this post).  Perhaps accepting a bribe might be a “higher” crime than offering one, but both are potentially impeachable.

A further current issue is whether the deal has to be consummated for the offense to be impeachable.  The answer is no.  Jacob wrote that, “if a judge refuse a bribe offered him, the offerer is punishable,” and of course that applies equally to “judges” as to any other official.  So no consummation is needed for the offerer to be held liable, although it’s usually much more difficult to prove that a bribe was offered if it was never consummated. 

There are currently two potential bribes at issue.  Chronologically, the first potential bribe was Joe Biden withholding aid to Ukraine until the Ukrainian government fired a prosecutor who was widely deemed to be corrupt; complicating that matter is the fact that Biden’s son’s company (Burisma) may have been an actual or potential target of that fired prosecutor.  The second potential bribe was when President Trump suggested that the new President of Ukraine (Zelensky) investigate various matters pertaining to the 2016 election and/or Burisma and/or Joe Biden.

Regarding the allegation that Joe Biden offered a bribe to get the prosecutor fired, he may have benefited from the firing, but there was no violation of duty by Ukrainian officials when they fired that prosecutor because they had other good reasons besides helping Biden’s personal situation with his son at Burisma.  Likewise, even supposing Trump was eager to get an electoral advantage over Biden in the 2020 election by having Democratic frontrunner Biden investigated by Ukrainian authorities, any failed attempt by bad actors in Ukraine to buy influence with an American Vice-President would be well worth investigating and punishing.  Foreigners who try to bribe high-ranking American officials (even incorruptible ones) represent perhaps the most dangerous form of foreign corruption, and so Trump would have had every reason to single out that sort of corruption for special attention, and it would be no violation of duty for a Ukrainian President to look into a failed bribery attempt.

It is troubling that Trump may have wanted Zelensky to publicly announce an investigation of Burisma in exchange for a White House visit, if not in exchange for military aid. After all, usual best practice is for investigators to keep quiet about their investigations until they obtain enough evidence to actually make an accusation, but Trump understandably might have wanted Zelensky to publicly commit to some sort of investigation to ensure that Zelensky would not renege on the investigation once he got the U.S. money.  

Here is a key exchange between Trump and Zelensky:

President Trump: There's a lot of talk about Biden's son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it... It sounds horrible to me.

President Zelensky: I wanted to tell you about the prosecutor. First of all, I understand and I'm knowledgeable about the situation. Since we have won the absolute majority in our Parliament, the next prosecutor general will be 100% my person, my candidate, who will be approved, by the parliament and will start as a new prosecutor in September. He or she will look into the situation, specifically to the company that you mentioned in this issue. The issue of the investigation of the case is actually the issue of making sure to restore the honesty so we will take care of that and will work on the investigation of the case.

So, it looks like Zelensky agreed to investigate something, though perhaps not all Trump had hoped for, but maybe enough to satisfy Trump.  Judging by this transcript, Trump was not asking Zelensky to go beyond what the U.S. Attorney General would approve, and as far as I know the U.S. Attorney General has never approved any joint U.S.-Ukrainian investigation of bad actors at Burisma who attempted to buy influence with Joe Biden, much less an investigation of Joe Biden himself.  

It is fortunate for everyone that the House of Representatives is currently focusing on a “bribery” charge, because the original meaning of that word is much clearer and more relevant than the more nebulous “high crimes and misdemeanors” term.  Even if the charge of “bribery” was selected by a focus group, it may expedite resolution of the controversy.

MICHAEL RAMSEY ADDS:  Here are some other views of the issue, from Carissa Byrne Hessick (North Carolina) at Prawfsblawg and Ben Berwick & Justin Florence (Protect Democracy) at Lawfare.

But I'm with Andrew on this one (only maybe more so).  Without expressing a view on high crimes and misdemeanors, the bribery argument seems strained to me.  I don't see either (in Jacob's words) an "undue reward" or an "act contrary to [one's] duty" on the Ukrainian side.  As far as I can tell, President Zelensky did not receive anything he shouldn't have nor do anything he shouldn't have.  I would be very surprised if there were any founding-era precedent for applying the term "bribery" to anything like this situation.

Put another way, I presume that exchanges of political favors are routine in domestic politics and (especially) in foreign affairs, and if we start calling them bribery a lot of surprised people are going to jail.  For example, suppose a member of Congress agrees to vote for a bill benefiting another member's district, with the understanding (or hope) that the other member will vote for a different bill benefiting the first member's district.  I doubt members of Congress think this is bribery.

Robert George on Textualism in the Title VII Cases
Michael Ramsey

At National Review, Robert P. George (Princeton): Counterfeit Textualism.  From the beginning: 

In 1964, Congress adopted Title VII, which forbids employers to discriminate based on sex. No one suggests that any member of Congress or the public then understood Title VII to ban discrimination based on “sexual orientation” or “gender identity.” Did generations of Americans miss something hidden in plain sight? Justice Elena Kagan thinks so. And she believes she can prove it with a knockdown “textualist” argument. But that argument fails for a decisive reason — one foreshadowed by Justice Neil Gorsuch’s expert dismantling of Kagan’s analysis in an earlier anti-discrimination case, Masterpiece Cakeshop v. Colorado Civil Rights Commission.

In the Title VII cases, Kagan proposes to test for sex discrimination by asking what would happen if an employee’s sex were flipped and all else were held constant. Thus, she would say, a company that fires Riley for being a woman who dates women is discriminating based on sex, because it would have kept Riley on if she were a man who dates women.

Clever, right? But the argument is fallacious. If it seems like a knockdown, that’s only because the objectionable moves were made offstage and then smuggled into the argument’s setup, diverting our gaze from the only fair reading of Title VII.

The whole appeal of Kagan’s argument is that it purports to flow directly from the text (“discriminate”), without any contestable moves along the way. Once you see that this is false, the argument loses all appeal, and its proponents have to fall back on dubious premises that cut against the only reasonable reading of the text. As we’ll see, the “textual” part of Kagan’s “textualist” case is doing no work whatsoever.

The hypothetical scenario described above doesn’t actually hold “all else constant.” In changing Riley’s sex while holding constant the sex of Riley’s dating partners, it flips a second factor, too: Riley’s “sexual orientation,” which has gone from homosexual to non-homosexual (or, if you prefer, from “gay” to “straight”).

11/20/2019

Eric Segall on the Descriptive/Normative Gap in Originalist Theory
Michael Ramsey

At Dorf on Law, Eric Segall: Solum on Posner and the Descriptive/Normative Gap in Originalist Theory.  From the key discussion: 

Solum's praise of Posner raises a question I have tried to get academic originalists to engage in but, with one exception (Professor Christopher Green), with little success, and it is an enormously important question for constitutional theory. On the one hand, many originalists, including Solum in his congressional testimony, argue that originalism and textualism have a long pedigree and have traditionally (maybe until the Warren Court), been "the predominate view of constitutional interpretation.... [F]or most of our nation’s history, the Supreme Court has made a good faith effort to follow the constitutional text."

But, on the other hand, many originalists argue that the Court has never been sufficiently originalist and that needs to change. I am quite confident, as I've written here before, that Professor Barnett along with noted academic originalists Michael Rappaport, Richard Kay, Michael Paulsen, and many others, believe that the "predominate view" of constitutional interpretation over the course of the Court's history has been closer to living constitutionalism than originalism, and that is why these scholars write the way they do. They would likely view their work as mostly normative, not descriptive.

Here's my attempt at an answer, not on behalf of any particular person but generally the sense of where conventional originalists are on the matter:  (a) textualist originalism was the leading (or at least a leading) approach to constitutional interpretation in the founding era and for some time after, although -- judges being human -- there are always examples of departures; (b) somewhere in the course of constitutional history -- there is debate about when it materially began -- the Court started to lose its way, shading more and more into nonoriginalist approaches, culminating in the late Warren Court; but (c) in any event and irrespective of the history, originalism is the correct theory of interpretation for normative reasons.

Professor Segall, relying on the outstanding and provocative work of Jeremy Telman, says that the founding era (especially the Marshall Court) was not originalist.  With all respect to Professor Telman, I disagree (though the disagreement may turn on what it means to be originalist).  As Telman shows, Marshall sometimes justified his opinions in part by results.  But Marshall also justified them on originalist/textualist grounds, and I don't think there is any major Marshall (or earlier) decision that isn't very arguably consistent with the text's original meaning.  (As to earlier decisions one might point to Chisholm v. Georgia but I think that decision is arguable justifiable on textualist grounds despite its sharp repudiation in the Eleventh Amendment.)