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31 posts from March 2020

03/31/2020

Eric Segall on Stephen Griffin on Optimistic Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Optimistic Originalism by Professor Stephen Griffin: A Must Read (commenting on this article by Professor Griffin).  From the introduction:

One of the great tensions between most forms of modern Originalism (that is any theory of Originalism without a component of strong judicial deference) and contemporary constitutional theory is how to reconcile the original public meaning of the Reconstruction Amendments with our modern society. The two most glaring examples of this disconnect are that most scholars and historians believe that the 14th Amendment's original meaning allows segregated schools (D.C. schools were segregated at the time and Congress knew it), and allow laws that overtly and harshly discriminate against women, such as Illinois' law barring women from being attorneys which the Supreme Court upheld in 1872. Yet, few Originalist scholars today are willing to live with those results (and it is unlikely any judge could be confirmed who took those positions). This problem has led to what Griffin accurately describes as "Optimistic Originalism."

Thoughtful and usually careful scholars Michael McConnell and Steve Calabresi are two among many whose historical work Griffin politely but convincingly demonstrates is more optimistic than accurate. McConnell wrote the seminal scholarly article arguing that Originalism and Brown v. Board of Education could go hand in hand. There have been many rebuttals to that claim by other distinguished scholars and Griffin collects those, adds his own original critique to that work, and shows persuasively that one must, in fact, pick sides--one can be a public meaning Originalist, or one can be a supporter of Brown, but one can't be both.

Griffin points to a host of other problems with how public meaning Originalists have looked at historical evidence to support their claims, and argues the following:

From their [public meaning Originalists] point of view, everyone who participated in the debates in Congress, indeed possibly everyone who lived in the nineteenth century, could have misunderstood their own law. I suggest we should be deeply uneasy about rendering irrelevant so much of the actual deliberation that occurred throughout the Civil War and Reconstruction. We should be uncomfortable with denying the reality of the War, so to speak. We should think about the implications of giving ourselves permission to bypass the way history actually happened. Doing this arguably denies us the explanatory and normative purchase that comes with appreciating the genuine difficulty of the constitutional questions that troubled nineteenth-century America. In approaching legal meaning in this way, public meaning originalism makes the fraught process of constitutional change disappear.

Griffin argues throughout the article that public meaning Originalists focus too much on text and not enough on historical context to support their arguments. The practitioners of public meaning Originalism fail to "consult the self understanding of the participants who enacted the amendments, " and thus "take on board an implausible set of meanings."

The reason that public meaning Originalists largely ignore the subjective understandings of the people living in the 19th century is that numerous academic Originalists dropped original intent originalism after a series of devastating critiques launched at it by scholars like Jefferson Powell and Paul Brest. But by minimizing and at times ignoring what people at the time believed the Fourteenth Amendment meant, Griffin persuasively argues public meaning Originalists simply get the history and context of that Amendment wrong. 

I agree that Professor Griffin's article is an important challenge to originalism and that it fairly critiques some versions of originalism as they contend with the 14th Amendment.  As came out in the presentation of this article at the originalism conference in San Diego, however, it's odd that Professor McConnell ends up being a central target.  Although McConnell's methodology is nuanced, he is probably closer to an original intent approach than many contemporary originalists, and in any event he is not associated with the New Originalist school that heavily discounts the ratifiers' expected applications of their own text.  New Originalists do seem somewhat vulnerable to Professor Griffin's critique (that modern originalism exalts abstract text over history and context) but Professor McConnell's work is just the opposite -- it is heavily informed by history.  Perhaps Professor Griffin thinks that historical account is wrong, but that's a different critique from saying that originalists "largely ignore the subjective understandings of the people living in the 19th century."  There are versions of originalism that "largely ignore the subjective understandings of the people living [at the time of enactment]" but that is not a necessary principle of public meaning originalism, as practiced by Professor McConnell or by other central figures such as Justice Scalia.

Rather, I think there are two distinct schools of optimistic originalism.  One thinks that the (bad) intentions/expectations of the drafters and ratifiers of the 14th Amendment can be ignored or discounted because of a theory of the meaning of texts, which allows a (good) meaning to emerge irrespective of original intentions/expectations.  The second thinks that the supposed (bad) intentions/expectations of the drafters and ratifiers are overstated, and that in fact the drafters and ratifiers had bold aspirations that were part of the text but (it quickly became apparent) could not be realized in practice.  They may both be wrong, but they are wrong for different reasons.

03/30/2020

Michael Morley: The Electoral College and the Constitutional Infirmities of the National Popular Vote Compact
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted The Framers' Inadvertent Gift: The Electoral College and the Constitutional Infirmities of the National Popular Vote Compact (Harvard Law & Policy Review, 2020) (60 pages) on SSRN.  Here is the abstract:

The National Popular Vote Compact requires member states to appoint presidential electors based on the outcome of the national popular vote in presidential elections. It enters into force when states holding a total of 270 votes in the Electoral College adopt it. The Compact has already progressed more than 2/3 of the way toward that goal. If it enters into force, the Compact will fundamentally change the nature of presidential elections without a constitutional amendment.

The Compact suffers from numerous constitutional flaws that have not been addressed in the literature. It violates the right to vote of member states’ citizens, by requiring those states to appoint presidential electors based on national vote tallies in which the votes of a member state’s eligible voters are diluted or even overwhelmed by votes of other states’ citizens who are ineligible to vote there. The Compact also violates the Equal Protection Clause as applied in Bush v. Gore because it requires all votes cast throughout the nation to be tallied together, even though they were cast under fifty-one different electoral systems, with materially differing voter qualification standards, voter registration and identification requirements, rules for counting and recounting ballots, and even policies on whether ranked-choice voting is permitted. The Compact also violates the Constitution’s implicit structural protections by undermining the special protection that the Electoral College affords smaller states and allowing a cabal of states to decide among themselves who the President will be, rendering other states’ electoral votes irrelevant. Finally, the Compact violates the Presidential Electors Clause by purporting to limit the inalienable plenary authority that the U.S. Constitution confers directly on state legislatures to determine the manner in which the state will choose its electors.

Even if the Compact were constitutionally valid, prudential and practical constraints counsel strongly against it. The Electoral College allows a presidential election to be resolved as a series of fifty-one discrete, parallel contests, rather than a single national election involving over 136,000,000 votes cast at thousands of locations. The Electoral College’s compartmentalization makes the system manageable, confines the scope of recounts or post-election litigation, and limits the consequences of any natural disasters, mistakes, or even fraud that may occur. Due to the geographical breadth of our modern nation and size of our population, the ability to elect a national leader through dozens of smaller, limited elections has become a largely inadvertent gift from the Framers that we should not squander.

Some of these arguments are more originalist than others.  The threshold originalist objection is that Article I, Section 10 says that "no State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State."  Modern law has watered down that clause somewhat in nonoriginalist ways (though not, in my view, enough to validate the National Popular Vote Compact); but for originalists (or even just textualists) the clause seems unavoidably conclusive.  Still, it's worth thinking about whether the Compact would be unconstitutional even if Congress approved it.

One further objection might be that the Compact, despite its name, is actually a treaty.  A different clause of Article I, Section 10 says that "No State shall enter into any Treaty" (presumably even with Congress' consent).  Though the Constitution thus recognizes a difference between treaties on one hand and agreements or compacts on the other, it is unhelpful on the difference.  I made some effort to work out the originalist difference in my long-ago article on executive agreements (where the issue also comes up) but that effort was not terribly satisfactory.

03/29/2020

James Allan on Larry Alexander on Originalism
Michael Ramsey

James Allan (The University of Queensland - T.C. Beirne School of Law) has posted In Honor of a Simple-Minded Originalist (34 Constitutional Commentary 401 (2019)) (17 pages) on SSRN (reviewing Moral Puzzles and Legal Perplexities: Essays on the Influence of Larry Alexander (Heidi M. Hurd ed., Cambridge University Press. 2019).  From the introduction (footnotes omitted): 

In May, 2017 the Yale Law School’s Center for Law and Philosophy, together with the University of Illinois’ Program in Law and Philosophy, co-hosted a conference at the alma mater of Larry Alexander, Yale Law School. The conference brought together eminent legal scholars in the areas of criminal law theory, constitutional law theory, jurisprudence and moral philosophy. They were there to honor Professor Larry Alexander of the University of San Diego School of Law, and the result of that celebratory conference, or Festschrift (in these more globalist times), is this very recently published Cambridge University Press book. And my, oh my, it is a very good book indeed. I mean that not just in the sense of it being good compared to the usual book length edited collection of two dozen odd essays that have to be stuffed between two covers. I mean it is a really good book even by the standards of a well-crafted, sole-authored monograph. The editor, Heidi Hurd, has done an excellent job of fitting together into a coherent whole all 22 contributing authors’ essays or chapters, together with her own introduction and a last-word reply-to-everyone final say by Alexander himself.

The book has four Parts, namely (and in order) “Puzzles in Criminal Law,” “Problems in Constitutional Law,” “Perplexities in Jurisprudence,” and “Parodoxes in Moral Philosophy.” Given the usual interests of the readers of this journal, I will focus on just the middle two of those Parts, which in various ways elucidate important issues that bear on constitutional law...

... And most obviously that brings me to the question of constitutional interpretation because Larry Alexander is a leading proponent of originalism, of the old school (and these days very minority) intentionalist variety. As a self-described “simple-minded originalist,” Alexander embraces his position firstly as a thesis about how language is used, secondly as one about the nature of all interpretation, and thirdly in normative terms about why in interpreting we should defer to the intended meanings of the authors of legal texts—so it is all three for Alexander, semantic, pragmatic and normative....

03/28/2020

Stephen M. Griffin: Optimistic Originalism and the Reconstruction Amendments
Michael Ramsey

Stephen M. Griffin (Tulane University Law School) has posted Optimistic Originalism and the Reconstruction Amendments (95 Tulane Law Review (2020-21, forthcoming)) (59 pages) on SSRN.  Here is the abstract:

This article critically examines the relationship of contemporary “public meaning” originalism to the legal achievement of the Reconstruction Amendments. It identifies an influential “optimistic” trend in recent originalist scholarship. A growing number of scholars contend that public meaning originalism can successfully address constitutional issues in light of the Reconstruction amendments. They argue that rightly understood, the Fourteenth Amendment’s original meaning aligns precisely with contemporary case outcomes, especially with respect to providing broad antidiscrimination rights to African Americans and women.

In this article I challenge originalism’s optimistic turn by examining it through a historical lens. Based on a wide-ranging review of recent historical scholarship, I argue that the theory of original public meaning in effect gives scholars permission to be optimists about Reconstruction by allowing them to sidestep its full historical context. This avoids the reality that relative to the point of view of Americans today, the constitutional law of the nineteenth century, which contained doctrines that both predated and outlasted Reconstruction, was unfortunate in many ways.

The argument presented in this article concerning the extent to which the Reconstruction amendments changed prior law has significance beyond the confines of the debate over originalism. The questions raised concerning the cogency of optimistic originalism suggests we should reassess the role of Reconstruction in contemporary legal scholarship. Many constitutional scholars are similarly “optimistic” about the Reconstruction amendments even though they do not count themselves as originalists. I have come to doubt whether the legacy of Reconstruction is as uniformly constructive as it is often represented – at least by legal scholars as opposed to historians.

I argue that the limits of Reconstruction become clearer once we focus on the question of whether there were constitutional reasons for its failure, reasons that were only later addressed, however incompletely, in the Second Reconstruction of the civil rights movement. My account suggests that if we are interested in understanding how constitutional law changes legitimately both inside and outside Article V, revisiting Reconstruction through the use of sound methods based in the practice of historians should steer us away from originalism and toward historicist theories of constitutional change.

The article proceeds in four parts. Because the debate between originalism and nonoriginalism is ongoing and multifaceted, Part I provides a necessary orientation to the debate and roadmap of the arguments and themes pursued in the rest of the article. Parts II and III are the heart of the article. Part II reboots the discussion of Reconstruction for legal scholarship by describing its historical context in a way that reveals its constitutional limits. I then use this context to critique prominent optimistic originalist accounts of the Fourteenth Amendment in Part III. I first present what I call the “sequencing argument,” detailing a problem that arises only for public meaning originalism. The remainder of Part III discusses two central issues for optimistic originalism: racial equality, especially with respect to school desegregation, and equal rights for women. Part IV draws on the historical discussion in the previous parts and the idea of “constitutional change as state building” to provide an overview of the failure of the First Reconstruction and show why the Second Reconstruction was legally necessary.

Professor Griffin presented an earlier version of this paper at the originalism works-in-progress conference at the University of San Diego in February (with Michael McConnell, an "optimistic originalist," as a commentator).

03/27/2020

Andre LeDuc on Lawrence Lessig's "Fidelity and Constraint"
Michael Ramsey

Andre LeDuc (Independent) has posted Who is to Be Master: Accounting for How the Supreme Court Reads the American Constitution (35 Constitutional Commentary, forthcoming) (41 pages) (Reviewing Lawrence Lessig, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution) on SSRN.  Here is the abstract:

The review essay begins by analyzing four central elements in Lessig’s account of the fidelity and constraint of meaning and role, the nature of social meaning and understanding, and the nature and role of constitutional translation and two-step originalism. First, the introduction of the concept of fidelity to role fundamentally changes Lessig’s theory. Fidelity to role not only provides a second, important source of constitutional decision; the introduction of the concept of fidelity to role changes how the original concept of fidelity to meaning functions within Lessig’s theory. Second, the introduction of the concept of fidelity to role fundamentally changes the nature of Lessig’s constitutional theory, from a traditional, systematic, holistic account to a pluralist account. Third, this change, while probably the most creative and profound part of Fidelity and Constraint (and perhaps the most creative contribution to constitutional scholarship in the past several decades) is so profound that Lessig himself doesn’t fully appreciate what he’s done. Fourth, articulating how fidelity to role operates and how it is reconciled with our normative discursive social practice of constitutional law are the biggest challenges that Lessig’s theory faces. In particular, the role of role has to be articulated in a manner that makes it consistent with the discursive, normative, performative character of our social practice of constitutional law and harmonizes that role with the demands of fidelity to, and constraint by, meaning. After having constructed a constitutional theory, Fidelity and Constraint undertakes four central missions. The first goal of the book is to redescribe our constitutional history. Many of Lessig’s redescriptions are powerful and persuasive. My focus, however, is on Lessig’s second and third projects. The second goal the book sets itself is to account for the Janus-faced character of constitutional decision, free to determine how to translate historical text yet constrained by that text and the role of the Court in our Republic. Lessig reconceptualizes our understanding of the nature of constitutional interpretation and decision. He makes three principal claims about fidelity to meaning. First, constitutional decision should maintain fidelity to the meaning of the constitutional text. Second, it is the social meaning of the Constitution to which fidelity should be maintained. Third, the original social meaning should be translated into the context of the current case. Lessig’s reconceptualization of constitutional adjudication and constitutional decision is even more brilliant and exciting than Lessig himself understands. Lessig remains enmeshed in the conceptual web of our traditional thinking about some of these questions. I suggest how we might cut him free of some of these constraints. Lessig argues that the fidelity to meaning must be tempered by a parallel fidelity to role. How could judicial decision proceed without some attention to what the Court can do? Constitutional adjudication is a practical, not a theoretical exercise. The resulting pluralist theory that incorporates the duty of fidelity to meaning and recognition of the judicial role is powerful. It captures the contingency of our constitutional decision-making and doctrinal development and, at least tacitly, what judges do when they decide cases. It captures the ebb and flow of doctrine in ways that the express arguments of the opinions don’t always make explicit. Lessig’s express methodological analysis is potentially instructive, but its contribution is undercut because Lessig invokes two radically different methods and resulting theories: those of econometrics and those of ethnography. Lessig’s theory gets enmeshed in methodological claims that he cannot, and need not, sustain. On the one hand, he claims to offer a falsifiable, predictive account of our constitutional practice, along the lines of an econometric model. On the other hand, he characterizes his account as a thick description of constitutional decisional practice over time. The first claim is overambitious and indefensible; the latter characterization of the account is apt and instructive, capturing what we should aspire to in our accounts of our constitutional practice. Those two models fundamentally conflict. Lessig appears unwilling or unable to resolve the manifest conflict between the two methodological models he invokes (it’s not clear that there’s a resolution other than to choose one or the other). The predictive, falsifiable theories produced by the methods of econometrics are fundamentally different from the interpretive theories produced by the methods of social sciences like ethnography and history. The methodological dissonance creates some conceptual static in his account. Lessig doesn’t conceptualize his theory as a pluralist theory. His failure to so conceptualize his account of meaning and role leaves him insensitive to the full descriptive, explanatory payoff that his account of the Constitution delivers. He sees only that it fails to offer a holistic account of our historic constitutional practice and aspirations. More fundamentally, Lessig’s account of social meaning and translation is articulated in a representational account of our constitutional language and knowledge. Lessig sometimes seems to believe that propositions of constitutional law are made true by corresponding with the constitutional text. His account of fidelity to role is inconsistent with such a correspondence account of truth. Lessig should recognize and acknowledge the performative role of the Court’s decisions. For the Court, saying makes it so. Introducing references to truth and correspondence for propositions of constitutional law into the context of the Court’s decision practice obscures far more than it illuminates. The third project of Fidelity and Constraint, to compare Lessig’s account with Bruce Ackerman’s comprehensive high theory of popular constitutionalism, is also illuminating. Lessig refines Ackerman’s theory in a powerful way. Lessig revises Ackerman’s theory, retaining the anti-formal, popular constitutionalist kernel of that theory, while excising the more sweeping theoretical claims that are at odds with our constitutional practices. Lessig accounts for constitutional flux without Bruce Ackerman’s radical theory of a discontinuous popular constitutionalism exercised by the People in constitutional moments that effect constitutional change outside the four corners of the Constitution (and Article V, in particular). Lessig’s implicit rehabilitation of Ackerman’s account on the more modest lines Lessig defends, excluding the New Deal from the litany of constitutional moment and informal constitutional amendments, is persuasive. Lessig’s account is more persuasive because it is a pluralist account; it recognizes that there are multiple sources of decision and constraint that must be taken into account in decision. By showing how such arguments maintain fidelity to role and to meaning, Lessig tacitly explains why such practice has proven so compelling and resilient. I am skeptical that he has shown that it is justified. Fidelity and Constraint’s fourth mission is to justify and defend the nature of the constitutional practice that we have. This may be the least developed argument in the book; Lessig acknowledges how fast his argument goes. I am skeptical that we need to justify our constitutional practice within this practice any more than we need to justify the Electoral College within our political electoral practice or judicial review within our constitutional decisional practice. The bedrock of all is the practice they are a part of.

03/26/2020

Another Look at Goldberg v. Kelly
David Weisberg

Question: If the majority opinion in Goldberg v. Kelly is dangerously misleading and the case was wrongly decided, does it follow that the due process clause in the 5th or 14th Amendment has no application whatsoever to welfare payments provided by government?  Prof. Ramsey’s recent post, and Prof. John McGinnis’ essay which is discussed in that post, would both support an affirmative answer.  I disagree.  I think Goldberg was wrongly decided because the State did provide adequate due process, not because due process is inapplicable to termination of welfare benefits.    

In constitutional interpretation, I consider myself a textualist, not an original-public-meaning originalist (for reasons set forth here and here).  Originalists sometimes (not always) ascertain the time-dated meaning of a word or phrase by examining the practices that were current when the word or phrase became part of the Constitution.  A classic example is Justice Scalia’s dissent in the same-sex marriage cases, Obergefell vHodges: “When the Fourteenth Amendment was ratified in 1868, every State limited marriage to one man and one woman, and no one doubted the constitutionality of doing so. That resolves these cases.” 

I agree that Obergefell was wrongly decided, but Justice Scalia’s reasoning is flawed.  It is true that in 1868 no one doubted the constitutionality of States limiting marriage to opposite-sex couples, but it is equally true that, at that time, no one explicitly affirmed that States could constitutionally prohibit same-sex marriage.  The whole truth is that, in 1868, no one even imagined same-sex couples marrying each other, so no one thought either way about constitutional issues concerning such marriages. 

If a certain set of facts (such as same-sex couples desiring to wed) was not, so to speak, in the public domain when a constitutional provision was adopted, what does the absence of any reference in that provision to that set of facts tell you about how the provision applies to those facts?  Nothing.  This is very different from a case involving facts with which the drafters were clearly familiar at the time of adoption.  Justice Scalia himself appreciated that important difference. 

In his book, A Matter of Interpretation, he discussed Maryland vCraig, 497 US 836 (1990), where the Court (over Scalia’s dissent) held that the 6th Amend’s confrontation clause was not violated when, in a criminal case of alleged child abuse, the young child testified in a room from which the defendant was excluded, while the defendant watched on closed-circuit television.  Justice Scalia wrote (p. 44, emphases in original):

[N]o extrinsic factors have changed since [the confrontation clause] was adopted in 1791.  Sexual abuse existed then, as it does now; little children were more easily upset than adults, then as now; a means of placing the defendant out of sight of the witness existed then as now (a screen could easily have been erected that would enable the defendant to see the witness, but not the witness the defendant).  But the Sixth Amendment nonetheless gave all criminal defendants the right to confront the witness against them[.]    

Prof. Ramsey asserts, with respect to Goldberg, that “the key is that ‘property,’ given its original public meaning, did not include rights to future gratuitous payments from the government.  Thus the due process clause does not protect welfare payments.”  This reasoning incorporates the same flaw found in Scalia’s Obergefell dissent.  I accept arguendo that, in 1791 or 1868, no one understood ‘property’ to refer to welfare payments, but that is not because in either of those eras people drew a sharp distinction between ‘property’ and ‘welfare payments’.  Rather, it is because in those eras the notion of poor people receiving gratuitous payments from government was not given serious consideration at all; it wasn’t, to use another phrase, on anyone’s radar.  

If the due process clause does not protect welfare payments, it would follow that government could distribute such payments in an entirely arbitrary manner, and no person would have a legal remedy.  Suppose the government decided to exclude people whose last names begin with “W” from an otherwise general welfare scheme.  Or, perhaps more realistically, suppose some government decided to bar all gun owners (whether legal or not) from an otherwise general welfare scheme.  If these exclusions had no reasonable relationship to the purposes of the welfare scheme, would they nevertheless be exempt from challenge under the due process clause?

I would argue that the due process clauses prohibit government from depriving anyone of anything of value without due process of law.  In 1791 or 1868, before the welfare state, the valuable things government might take from a person were life, liberty or property.  Today, an individual loses something of value if the government terminates welfare benefits.  The drafters of the 5th and 14th Amendments never rejected the idea that welfare recipients should be provided some due process upon termination; they never thought about that question at all.

One might ask: if the above interpretation is correct, why doesn’t the 5th Amend read: “…nor be deprived of anything of value without due process of law...”,  and the 14th: “…nor shall any State deprive any person of anything of value without due process of law….”?  One always wishes that one’s interpretation of a constitutional provision is identical to the actual provision.  That of course is the virtue of the stance Profs. Ramsey and McGinnis take: ‘property’ did not encompass rights to welfare benefits, so due process does not apply.

Here I can only reiterate that, when the 5th and 14th Amendments were adopted, welfare benefits from government were not something that was widely discussed—perhaps that idea had not even been conceived.  Is there anything in the 5th or 14th Amendment, or in any other provision of the Constitution, suggesting that it is permissible for a government to arbitrarily grant or deny valuable benefits?  To my mind, the Constitution is manifestly designed to prohibit arbitrary governmental action and to ensure that governments act fairly and reasonably.  So, I think the better view is that some measure of due process must be provided whenever government deprives anyone of anything of value.  In Goldberg, the plaintiff had a colorable cause of action, but the due process provided by New York State was more than adequate.    

03/25/2020

Allen v. Cooper: When is a Precedent "Extended"?
Michael Ramsey

In Allen v. Cooper, decided Monday, the Supreme Court held unanimously (with some concurrences) that Congress lacked constitutional authority to abrogate state sovereign immunity for claims of copyright infringement.  The opinion relied heavily on the Court's prior decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, which held that Congress lacked constitutional authority to abrogate state sovereign immunity for claims of patent infringement.  That's notable because a number of the Justices think (or likely think) Florida Prepaid was wrongly decided.

My view is that stare decisis, whatever its strengths in other contexts, does not (and should not) require courts to extend erroneous decisions to new circumstances.  (See here).  Specifically for originalists, I've suggested that a way to implement originalism in the face of the many nonoriginalist precedents we have is to (at minimum) not extend nonoriginalist precedents.  That approach is likely to contain nonoriginalist precedents, as new issues arise that can be resolved on originalist principles, building a larger body of originalist law.  (The article linked above applies this idea to the supremacy clause and federal common law).

But what counts as an "extension"? I acknowledge this issue in the article but don't really deal with it.  For those who think Florida Prepaid was wrong, Allen v. Cooper raises this question (though the opinions don't discuss it much).  (To be clear, I'm not saying Florida Prepaid was wrong on originalist principles, just assuming so hypothetically).  Specifically as to Allen v. Cooper, does the decision "extend" Florida Prepaid from patents to copyrights?  Or does Florida Prepaid decide that Congress lacks abrogation authority under the "Intellectual Property Clause" (as the Court calls it), thus covering both patents and copyrights?

My tentative view is that the question is whether there's some meaningful difference between patents and copyrights on this ground, and my tentative view is that the answer is no (so it's not an "extension") but I'm not terribly confident.

RELATED:  At Prawfsblawg, Richard Re has some further thoughts on Allen v. Cooper: Is “Stare Decisis … for Suckers”?

03/24/2020

John Vlahoplus: Bound Electors
Michael Ramsey

Recently published,  John Vlahoplus: Bound Electors (106 Va. L. Rev. Online 1 (2020)).  Here is the introduction (footnotes omitted):

In a decision hailed as “a masterpiece of historical analysis and originalist reasoning,” the Tenth Circuit recently held that the Constitution prevents a state from binding its presidential electors to vote for the winner of the state’s popular vote. The Supreme Court has agreed to review and resolve this important issue of constitutional law before the 2020 presidential election.

Far from being a masterpiece, however, the Tenth Circuit opinion is a selective reading of incomplete linguistic, historical, and judicial materials. It ignores centuries of controversy over interpreting the law governing presidential elections. It reaches an overly broad conclusion—that “the states’ delegated role is complete upon the appointment of state electors”—that is inconsistent with constitutional history and practice. It ultimately relies on background political principles that were contested at the adoption of the Constitution and remain contested today.

In addition, the opinion utilizes the disputed interpretive technique of attributing thick meanings to constitutional words to divine substantive results from open-textured or scant constitutional provisions. This technique includes attributing prescriptively thick meanings to words—meanings that implicitly generate substantive rules of law missing from the Constitution’s express text. The Tenth Circuit finds an unwritten constitutional rule that states may not abridge the freedom of presidential electors largely because it finds that at the adoption of the Constitution the word “elector” meant someone who has freedom when voting.

This Essay critiques the Tenth Circuit decision. It furnishes historical support for an interpretation that state power over electors continues after their appointment and may include the power to bind them to the result of a popular election. It identifies issues with attributing thick meanings to constitutional terms. It suggests that the Supreme Court should reject the Tenth Circuit’s reasoning and develop a coherent theory of the roles of the people, the states, and the federal government in the electoral process in order to resolve the dispute. Finally, it suggests a number of questions that the Court might consider in developing that theory.

03/23/2020

Anuj Desai: The Dilemma of Interstatutory Interpretation
Michael Ramsey

Anuj C. Desai (University of Wisconsin Law School) has posted The Dilemma of Interstatutory Interpretation (77 Wash. & Lee L. Rev. 177 (2020)) (92 pages) on SSRN.  Here is the abstract:

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court then treats the two statutes as though they were one. The doctrine thus permits judges to use ordinary doctrines of intra-statute interpretation across the two statutes. Determining that two statutes are “on the same subject” thus gives interpreters a powerful tool of interstatutory interpretation.

How, then, should courts determine whether to treat two statutes as one? If we frame the question through the lens of the two currently predominant theories of statutory interpretation — textualism and intentionalism—we can see that the traditional approach of asking about the statutes’ “subject matter” in the abstract makes little sense. For textualist judges who care about objective meaning, it makes more sense to engage in interstatutory cross-referencing if and only if the audience for the two statutes—the appropriately informed objective reader of the statutes—is the same. For interpreters who care about subjective legislative intent, interstatutory cross-referencing would generally be appropriate if and only if the two statutes were drafted by and came through the same Congressional committees.

Even if one rejects my proposed approaches, thinking about how to fit interstatutory cross-referencing into modern theories of statutory interpretation raises some confounding issues for those theories. In particular, it requires textualists to articulate explicitly who the audience for any given statute is, for without doing so, the textualist has no theoretical basis for determining when interstatutory cross-referencing is appropriate and when it is not. Thus, irrespective of the specifics of my proposals, looking at the ancient doctrine of in pari materia through the lens of modern theories of statutory interpretation sheds light on important questions about statutory interpretation that courts and theorists have largely ignored.

03/22/2020

Orin Kerr: Decryption Originalism
Michael Ramsey

Orin S. Kerr (University of California, Berkeley School of Law) has posted Decryption Originalism: The Lessons of Burr (134 Harvard Law Review, forthcoming) (58 pages) on SSRN.  Here is the abstract:

The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device. When the Court rules, the original understanding of the Fifth Amendment may control the outcome. This Article details an extraordinary case that illuminates the original understanding of the privilege and its application to compelled decryption. During the 1807 treason trial of Aaron Burr, with Chief Justice John Marshall presiding, the government asked Burr’s private secretary if he knew the cipher to an encrypted letter Burr had sent to a co-conspirator. Burr’s secretary pled the Fifth, leading to an extensive debate on the meaning of the privilege and an opinion from the Chief Justice.

The Burr dispute presents a remarkable opportunity to unearth the original understanding of the Fifth Amendment and its application to surprisingly modern facts. The lawyers in Burr were celebrated and experienced advocates. The Chief Justice allowed them to argue the Fifth Amendment question in exhaustive detail. And an attorney recorded the entire argument in shorthand, including dozens of legal citations to the specific pages of the authorities the lawyers invoked. The rich materials allow us to reconstruct for the first time precisely how the privilege was understood by leading lawyers and Chief Justice John Marshall soon after the Fifth Amendment’s ratification. The Article presents that reconstruction, and it concludes by applying Burr’s lessons to the modern problem of compelled decryption of digital devices such as cell phones and computers.