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33 posts from May 2020


A Reply to John Vlahoplus on Title VII
James Phillips

The Supreme Court has yet to release a decision in cases presenting the questions of whether Title VII’s ban on employment discrimination based on sex would also exclude discrimination based on sexual orientation and gender identity.  Those who think so have argued that the text is on their side.  I have shown that their putatively textualist argument violates an important linguistic (and hence properly textualist) principle:  the principle of compositionality.  Plaintiffs flout that principle when they fail to take the word “discriminate” together with its surrounding language as the semantic unit that it had become by the 1960s:  “discriminate against . . . because of . . . [one of several suspect classifications, including “sex”].”  In my piece, I read that whole phrase in light of the principle of compositionality, enactment-era dictionaries, and voluminous databases of English texts from that era.  I showed that properly read, Title VII’s ban on sex discrimination covers only those employment policies that reflect unfair attitudes or notions about some or all men in particular, or some or all women in particular.  I also showed that this reading is compatible with all of (and finds express support in many of) the Supreme Court’s precedents on Title VII.

In his brief response, John Vlahoplus doubts the last claim.  He suggests that my reading of Title VII contradicts one Supreme Court decision in particular: Ricci v. Destefano.  There a City administered a test to determine which of its firefighters to promote, but then threw out the test results when it noticed that racial minorities had scored lower than whites.  In its defense, the City said that it scrapped the test only to avoid a harmful disparate impact on minorities (and consequent liability for the City itself, under a statutory provision holding employers responsible for policies that have such impact).  Because this decision was motivated by a desire to avoid disparate impact liability, the City argued, it could not count as a violation of Title VII’s ban on direct discrimination.  But the Supreme Court determined that the City had indeed violated the latter ban.  Mr. Vlahoplus thinks that this holding disproves my theory that direct discrimination under Title VII must rest on unfair attitudes or generalizations based on a suspect classification.

That is not so.  The City in Ricci threw out a test that benefitted white candidates because the beneficiaries were white.  But to treat the fact that a test benefits whites as a knock against it is to discount the interests of white candidates in particular (i.e., relative to others’ interests).  And this comes squarely within the definition of class-based discrimination that emerged from my analysis.  As I repeatedly described the conclusion of my research, Title VII’s operative language is best read to ban treatment that reflects “unfair attitudes” (or ideas) toward members of one group in particular, including the “discounting of interests” of members of that group (not only “outright antipathy” toward them).  Pp. 3, 6, 7.  This focus on a discounting of white candidates’ interests relative to others’ is reflected throughout Justice Kennedy’s majority opinion and Justice Alito’s concurrence.  In Justice Kennedy’s telling, for instance, the City’s discarding of the test denied “equal opportunity” for white candidates; thwarted their “legitimate expectations,” created by the administration of the test; and wasted white candidates’ investment of “substantial time, money, and personal commitment in preparing” for the test.  Justice Alito likewise emphasized his view that the City denied members of one racial group a “fair chance” at promotion.   

To be sure, if an employer’s action merely prevents a disparate impact, for the sake of compliance with federal law, it does not rest on unfair attitudes or ideas, and so cannot violate Title VII on my reading.  But the Ricci Court agreed, so there is no contradiction.  The problem in Ricci, according to the Court, was that it was unreasonable for the City to think that keeping the test results would create a cognizable disparate impact.  (“[T]here is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability[.]”)  And if the City’s action did not prevent a cognizable harm to one racial group, it could only “amount[] to the sort of racial preference [for another group] that Congress has disclaimed”—the sort that necessarily reflects a discounting of the interests of members of one group in particular; the sort covered by my reading of Title VII in light of the principle of compositionality.


John McGinnis on Faithless Electors and the Threat to Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: Faithless Electors and Faithful Judges.  Here is the introduction:

Two cases argued this month, Chiafalo v. Washington and Colorado Department of State v. Bacca, pose the most important questions this term for originalism. They concern the ability of presidential electors in the Electoral College to exercise their own legal discretion in the choice of President. In the first case, Washington has fined Mr. Chiafalo for refusing to vote for Hillary Clinton, the candidate to whom he was pledged. In the second, Colorado replaced Mr. Bacca before he could vote for a candidate other than Clinton, to whom he was also pledged. Both electors object to their treatment as violating their rights as presidential electors under the Constitution.

The cases’ significance for originalism stems from the absence of controlling Court precedent on the question of a presidential elector’s discretion. Most Supreme Court cases have prior cases that arguably dispose of the issue, but these do not. The only case about the obligations imposed on electors, Ray v. Blair, concerned moral pledges that parties required of the electors, not the very different question of whether the electors’ choice can be disciplined by law. In their lack of controlling precedents, these new cases resemble NLRB v. Noel Canning, in which the Court had to address, for the first time in its jurisprudence, certain important questions about the scope of the Recess Appointments Clause.

Unfortunately, if the oral argument for the cases about presidential electors is any indication, the Court may do grave damage to originalism by suggesting that the bad consequences of a constitutional provision or practice subsequent to the time of its enactment can override its original meaning.

Also from later on, this point:

Some of the justices, including Sotomayor, Kavanaugh, and Kagan, also suggested that common practices since the time the Electoral College was created might be considered in addition to the original meaning. But this method has many of the same problems as the consequentialist approach, and it is not akin to following judicial precedent. The scope of practices is generally less clear than the scope of judicial precedent because such practices do not come with a rationale laid out in a case. For instance, it has been the practice for some time for many states to require electors to pledge themselves to a candidate. But this practice of pledging has not carried with it any legal obligation, which is the relevant issue here.

Agreed.  I may be more sympathetic to the use of non-judicial precedent to qualify originalism than Professor McGinnis is.  But non-judicial precedent (like judicial precedent) needs to be used precisely and narrowly to fit with originalism.  (See my discussion of custom as a basis of law here, where I use the example of congressional-executive agreements).  In the faithless electors case, the relevant custom is imposing punishment on faithless electors (in the Washington case) and removing and replacing faithless electors (in the Colorado case).  My understanding, as informed by the briefs in those cases, is that neither practice is either longstanding or widespread.  So even if originalism is appropriately tempered by widespread longstanding practice, that isn't an appropriate guide here.


Gary Lawson: A Private-Law Framework for the Public-Law Puzzle of Subdelegation
Michael Ramsey

Gary Lawson (Boston University School of Law) has posted Mr. Gorsuch, Meet Mr. Marshall: A Private-Law Framework for the Public-Law Puzzle of Subdelegation (forthcoming, American Enterprise Institute) (46 pages) on SSRN.  Here is the abstract:

In the wake of Gundy v. United States, 139 S.Ct. 2116 (2019), there is reason to think that five Justices might be willing to consider reviving the constitutional non-subdelegation doctrine. But in what form? Judges and scholars have labored for more than two centuries to come up with a legally rigorous standard for evaluating the permissible scope and breadth of congressional grants of discretion to executive and judicial agents. Some, such as Justice Scalia, eventually gave up in despair. That is a grave mistake. Lawyers had faced subdelegation questions for centuries before the Constitution was ratified, in the context of private-law agency arrangements. There are good reasons to think that the Constitution draws on private-law background norms for much of its meaning, and the subdelegation problem is an excellent candidate for elaboration in private-law terms. Thus, when Chief Justice John Marshall in 1825 drew a distinction between impermissible grants of discretion on “important subjects” and permissible grants of discretion on matters of “less interest,” his approach was far more structured, grounded in precedent , and law-like than may appear at first glance. It drew on principles and case law developed in settings ranging from powers of appointment in wills, in which the holder of the power tries to designate another person to exercise it, to the lack of privity between merchants and subdelegees in the absence of express authority on the part of the agents to subdelegate power, to the lack of authority of factors and supercargoes to entrust sale of goods to subagents without the express consent of their principals. Thus, judges worried about the open-ended character of a non-subdelegation doctrine need not run away from Chief Justice Marshall’s classic formulation. They simply need to flesh out its private-law background. There was abundant law regarding subdelegation in the eighteenth and nineteenth centuries, and the Constitution’s subdelegation principle is grounded in that law.

Via Larry Solum at Legal Theory Blog, who says:  "Highly recommended."


Julian Davis Mortenson & Nicholas Bagley on Nondelegation
Michael Ramsey

In The Atlantic, Julian Davis Mortenson & Nicholas Bagley: There’s No Historical Justification for One of the Most Dangerous Ideas in American Law (drawing on their longer paper here).  From the introduction:

Most government activity in the United States rests on a simple idea: that it’s okay for the legislature to authorize the executive branch to regulate basically anything the legislature itself could reach—working conditions, pollution, elections, financial products, mask wearing, you name it. That idea is now under attack. Relying on a so-called nondelegation doctrine, conservative originalists insist that the Founders never intended for government to work this way. They call for courts to strike down any laws that delegate too much power—and much of the federal bureaucracy along with them.

Their argument is grounded in a cursory, selective review of the historical record; it simply falls apart under any kind of serious scrutiny. Americans in 1789 didn’t share the view that broad delegations of legislative power violated the Constitution. Indeed, they would have been baffled by the claim, because governments throughout the Anglo-American world had long relied on this very technique without controversy. There wasn’t any nondelegation doctrine at the founding, and the question isn’t close.

And on early practice:

Early Congresses followed suit. Though they often issued instructions in painstaking detail, they also delegated in sweeping terms. These delegations were neither ancillary nor of secondary importance. They were vital to the establishment of a new country—to shore up its finances, regulate its industry, govern its territories, secure its revenue, and guard against internal and external threats.

Here are a few examples, all drawn from the First Congress, which sat from 1789 to 1791:

    • Congress readopted the Northwest Ordinance, which gave to the appointed governor of the Northwest Territory and three federal judges the power to issue the territory’s entire civil and criminal code “as may be necessary and best suited to the circumstances of the district,” with no other guidance whatsoever.
    • To foster industrial innovation, Congress adopted a patent law giving the secretary of state, the secretary of war, and the attorney general the power to grant patents to new inventions whenever they “deem the invention or discovery sufficiently useful or important.”
    • Congress forbade trade or intercourse with American Indian tribes without a license—and required all licensees to be “governed … by such rules and regulations as the President shall prescribe.”

All of these laws, and others we discuss in the paper, empowered executive officials to adopt rules governing private conduct without meaningful guidance from Congress.

(Via How Appealing).

For some originalist counterarguments, see here from Ilan Wurman and here from Aaron Gordon.


New Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey

Recently published: the latest issue of the Harvard Journal of Law and Public Policy (vol. 43, issue 1, Spring 2020), featuring essays based on presentations at the Federalist Society's event "The Second Amendment in the New Supreme Court."

Here is the Table of Contents:

The Second Amendment in the New Supreme Court

The Second Amendment and the Spirit of the People Renée Lettow Lerner

The Right to Bear Arms: For Me, But Not for Thee? Stephen P. Halbrook

The Surprisingly Strong Originalist Case for Public Carry Laws Jonathan E. Taylor

“Assault Weapon” Bans: Unconstitutional Laws for a Made-up Category of Firearms Mark W. Smith

Comments on Assault Weapons, the Right to Arms, and the Right to Live Jonathan E. Lowy


On the Basis of Identity: Redefining “Sex” in Civil Rights Law and Faulty Accounts of “Discrimination” Ryan T. Anderson

Property, Privacy, and Justice Gorsuch’s Expansive Fourth Amendment Originalism Nicholas A. Kahn-Fogel

Do Platforms Kill? Michal Lavi


The Senate vs. the Law: Challenging Qualification Statutes Through Senate Confirmation Eli Nachmany




Richard Reinsch Reviews Robert Reilly's "America on Trial"
Michael Ramsey

At National Review, Richard M. Reinsch: In Defense of a Liberty Worthy of Man (reviewing [favorably] America on Trial: A Defense of the Founding, by Robert R. Reilly (Ignatius Press 2020)).  From the introduction:

In America on Trial, Robert Reilly excavates the deep foundations of the American Founding. He finds in them the unwritten constitution of Western political philosophy and theology that stretches back to Jerusalem, Athens, and Rome. Reilly focuses on the tradition of “right reason,” that is, the metaphysical, epistemological, anthropological, and theological roots of constitutional government. Those roots are thick but forgotten, if not denied, by most of the West’s academic and intellectual class. In his study, Reilly reintroduces contemporary readers to ideas about the primacy of reason over will, universal truth, natural law, and monotheism. From these touchstones, he shows how other truths were discovered: man created in the imago Dei, equality of persons, and the moral grounding of freedom — which empty the state of the divine power it held in the classical world — along with the intrinsic good of happiness and its inseparable relationship with virtue. These are the pillars of constitutional thought and practice that must be understood before we can think about law and politics.

This is a book, therefore, “not so much about the Founding itself as about the provenance of its ideas. Its purpose is to demonstrate that the ideas of democratic constitutional government have only one set of roots in human history.” An underlying concern is the role that our understanding of reason and will plays in establishing constitutional government: “The drama hinges on two opposing conceptions of reality: Is it constituted by reason or by will?” The answer to this question, Reilly repeatedly argues, shapes what we think about the substance of law. This is because the “primacy of reason means that what is right flows from objective sources in nature and the transcendent, from what is, as Plato proposed. Primacy of will, on the other hand, means that what is right flows from power, that will is a law unto itself.”

Reilly describes the ideas of an array of thinkers linked across centuries who contributed to the bedrock of American constitutionalism: Aristotle, Cicero, Augustine, Thomas Aquinas, Francisco Suárez, Richard Hooker, Algernon Sidney, and John Locke are some of the highlights. He also surveys a competing set of thinkers whose ideas he says created the conditions for political absolutism: William of Ockham, Niccolò Machiavelli, Thomas Hobbes, Martin Luther, and Sir Robert Filmer are some of the dim lights. Reilly argues that our country encapsulates in an exemplary manner Western civilization’s always difficult attempt to forge a liberty worthy of man, a being between God and the beasts. His challenging claim is that the preconditions for becoming a constitutional people are rooted in our philosophical ideas about essence, reality, human nature, and God. Such ideas inevitably shape whether we think we are capable of the morally demanding requirements of freedom. They ground and inform the responsibility needed to govern ourselves according to reason and to flourish.

And here is the book description from Amazon:

The Founding of the American Republic is on trial. Critics say it was a poison pill with a time-release formula; we are its victims. Its principles are responsible for the country's moral and social disintegration because they were based on the Enlightenment falsehood of radical individual autonomy.

In this well-researched book, Robert Reilly declares: not guilty. To prove his case, he traces the lineage of the ideas that made the United States, and its ordered liberty, possible. These concepts were extraordinary when they first burst upon the ancient world: the Judaic oneness of God, who creates ex nihilo and imprints his image on man; the Greek rational order of the world based upon the Reason behind it; and the Christian arrival of that Reason (Logos) incarnate in Christ. These may seem a long way from the American Founding, but Reilly argues that they are, in fact, its bedrock. Combined, they mandated the exercise of both freedom and reason.

These concepts were further developed by thinkers in the Middle Ages, who formulated the basic principles of constitutional rule. Why were they later rejected by those claiming the right to absolute rule, then reclaimed by the American Founders, only to be rejected again today? Reilly reveals the underlying drama: the conflict of might makes right versus right makes might. America's decline, he claims, is not to be discovered in the Founding principles, but in their disavowal.


Title VII:  A Response to James Phillips
John Vlahoplus

In a recent draft article noted here, James C. Phillips argues that Title VII’s prohibition on discrimination because of sex only applies “to adverse treatment that rests on prejudice—i.e., unfair beliefs or attitudes—directed at some or all men, or at some or all women.”  Phillips’ interpretation is contrary to the Court’s major discrimination decisions and ignores important text in Title VII. 

Precedents.  Under the Court’s major precedents, any adverse decision that takes into account sex, race or other enumerated category discriminates against the employee because of his or her sex, race or other category.  Beliefs and attitudes are relevant to potential defenses such as that of a bona fide occupational qualification.  Consider the “reverse discrimination” decision in Ricci v. DeStefano.  The employer considered race in promoting employees in a good-faith effort to avoid disparate-impact liability under Title VII.  The employer did not take into account any unfair beliefs or attitudes about any race. The Court nonetheless found that the employer discriminated against the non-promoted employees because of their race: 

Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers cannot take adverse employment actions because of an individual’s race. See § 2000e-2(a)(1) . . .  Whatever the City’s ultimate aim — however well intentioned or benevolent it might have seemed — the City made its employment decision because of race . . .  The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

This interpretation is consistent with the Court’s decision in Loving v. Virginia, which found “racial classifications in [marriage] statutes repugnant to the Fourteenth Amendment, even assuming an even-handed state purpose to protect the ‘integrity’ of all races.”  It is also consistent with important lower court decisions interpreting Title VII, such as Williams v. Saxbe: “That a rule, regulation, practice, or policy is applied on the basis of gender is alone sufficient for a finding of sex discrimination. . .  The reason for the discrimination under Title VII is not necessary to a finding of discrimination. . .  Rather, the reason for the discrimination may only be relevant in considerations of whether the policy or practice is based upon a bona fide occupational requirement.”  Similarly, the court in Evans v. Sheraton Park Hotel relied on a Title VII race discrimination precedent to find that using a sex classification per se discriminates against employees based on their sex: 

The unions in ILA were segregated on the basis of race. The unions here were segregated on the basis of sex.  The precise statute (42 U.S.C. § 2000e-2(c)(2)) involved in ILA is the one involved here.  It specifically prohibits discrimination based on race, color, religion, sex, or national origin . . .  Congress, in enacting Title VII found classifications based on sex inherently invidious.  We think the District Court correctly held that maintenance of unions segregated on the basis of sex constitutes a per se violation of 42 U.S.C. § 2000e-2(c).

Other text in Title VII.  Phillips applies a principle of compositionality to what he purports to be “the whole operative language of Title VII,” which he quotes as “discriminate against any individual . . . because of such individual’s  . . . sex.” However, Title VII has several operative provisions, only some of which include the term “discriminate against.”  Courts do not distinguish the provisions based on whether they include the term.  The Ricci Court specifically found that the employer’s promotion decisions violated § 2000e-2(a)(1), which includes the term “discriminate against.”  But the Court also referred to the singular “disparate-treatment prohibition contained in . . . § 2000e-2(a)” even though § 2000e-2(a)(2) does not contain the term “discriminate against.”

The Evans court found that § 2000e-2(c)(2) “specifically prohibits discrimination based on race, color, religion, sex, or national origin.”  But that subsection does not include the word “discrimination” or any variant of it.  Subsections -2(c)(1) and -2(c)(2), on the other hand, do include the term “discriminate against.”  The textual difference is irrelevant.  The court concluded that sex segregation “constitutes a per se violation of 42 U.S.C. § 2000e-2(c)” generally, without regard to a specific subsection.

The precedents are controlling.  Regardless of whether a specific provision of Title VII includes the term “discriminate against,” an employer cannot take adverse employment actions because of an individual’s sex absent a lawful justification such as a bona fide occupational qualification.  The employer’s beliefs and attitudes are instead relevant to the question whether such a justification exists.


Josh Blackman and Seth Barrett Tillman on Faithless Electors
Michael Ramsey

At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman: What are Presidential Electors?  From the introduction:

Last week, we posed three questions concerning the characterization of presidential electors. Are they "subordinate state officers"? Do they perform a "federal function"? Do they hold a "Public Trust under the United States"? In this post we will answer each of these three questions. 

And as to the first:

First, electors cannot be "state officers," of any kind. These positions were created by the Constitution. In light of U.S. Term Limits v. Thornton (1995), the power to regulate electors "is not part of the original powers of sovereignty that the Tenth Amendment reserved to the States . . . because that Amendment could only 'reserve' that which existed before." The position of federal elector for President and Vice President was created by the Constitution of 1788. 

We do not take a position on the question presented in Thornton: whether states have the power to enact ballot access laws that, as a practical matter, impose additional substantive qualifications on members of Congress. Rather, our analysis turns solely on the issue of whether the states have the authority to constrain the discretion of federal presidential electors when casting their ballot for president and vice president. We think this issue is akin to whether states have the authority to constrain the discretion of Senators, for example. Prior to the Seventeenth Amendment, state legislatures chose these federal officials; no one would have contended that the states could control the discretion of Senators as "subordinate" state officials.

Agreed (see here).  But their reasoning then runs in a different direction from mine.


Mark Frassetto on Originalist Methodology in Second Amendment Cases
Michael Ramsey

Mark Frassetto (Everytown for Gun Safety) has posted Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases (21 William and Mary Bill of Rights J., forthcoming) (31 pages) on SSRN.  Here is the abstract:

This article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis — specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality — can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to interpret it.” Examining how courts answer these threshold questions and make nuanced judgments about history is necessary if courts are going to make consistent and predictable decisions in Second Amendment cases.

In researching this article, the author looked at fifty of the most significant Second Amendment cases across the federal circuit courts and analyzed their treatment of several methodological points. Ultimately this research shows that, while there is near unanimous national consensus within the federal circuit courts on the overall methodology with which to assess Second Amendment challenges — a framework for deciding cases known as the “two-step test” or the “two-part test” — there are important unresolved methodological issues that have an important impact on how Second Amendment cases are analyzed and decided. These methodological issues, which exist within the consensus framework, allow judges to influence the ultimate decision in a case while appearing to apply objective criteria. This article aims to bring these issues to the fore and to encourage further consideration of these important originalist methodological points.


The Oath Argument at Sea
Evan Bernick and Chris Green

Charles Barzun, famous in constitutional-theory circles for his attack on Baude-Sachs original-law originalism, takes aim in a post on Balkinization at the oath argument for originalism that one of us posted last week. That argument depends on our jointly-authored draft for its first part. There, we use contemporary and contingent social facts concerning constitutional practice—rather than the general nature of writtenness or “what interpretation just is”—to ground our claims about current constitutional obligations in the nature of the original Constitution. The second part of the argument depends on Green’s premise-seven argument about constitutional indexicals to tie the nature of the original Constitution, not to marks on parchment, but to the meaning those marks expressed in their original context. We hasten to add that the “original Constitution” includes any changes made through processes authorized by the Document ratified in 1788.

Barzun says that linchpin of our argument is premise (4), which says that current constitutional culture thinks that today oath-takers promise to support the same entity—the same Constitution—to which George Washington swore an oath. However, at the very end of his post, he admits that the sociological aspect of (4)—which is all it is intended to cover—is probably true. We are probably right that “most of us today do think that our Constitution is the same as the one at the founding.” This is quite a striking concession for the chief academic critic of Baude and Sachs.

Barzun’s objection is not to (4) itself, but to the use we make of this supposed “sameness” between our Constitution today and the Founders’ Constitution. What is sameness, after all, anyway? More after the jump.

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Evan Bernick and Chris Green" »