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33 posts from May 2020


Scalia on Merryman
Andrew Hyman

In 1861, President Lincoln purported to suspend habeas corpus along rail lines in Maryland that were used for Union troop movements.  Congress was not in session at the time.  The constitutionality of the suspension was denied by Chief Justice Taney (“at chambers”) in Ex parte Merryman.  143 years later, Justice Scalia discussed this matter in his Hamdi v. Rumsfeld dissent:

Our Federal Constitution contains a provision explicitly permitting suspension, but limiting the situations in which it may be invoked: “The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. Although this provision does not state that suspension must be effected by, or authorized by, a legislative act, it has been so understood, consistent with English practice and the Clause’s placement in Article I. See Ex parte Bollman, 4 Cranch 75, 101 (1807); Ex parte Merryman, 17 F. Cas. 144, 151–152 (CD Md. 1861) (Taney, C. J., rejecting Lincoln’s unauthorized suspension); 3 Story §1336, at 208–209.

Lincoln may have had other ways to accomplish similar goals, without suspending the writ, as Justice Scalia described:

Where the commitment was for felony or high treason, the [Habeas Corpus Act of 1679] did not require immediate release, but instead required the Crown to commence criminal proceedings within a specified time…. [T]he practical effect of this provision was that imprisonment without indictment or trial for felony or high treason under §7 would not exceed approximately three to six months.

So, Lincoln might have been able to keep Merryman and his cohorts on ice until Congress returned.  But, Taney almost certainly would have tried to release them on bail immediately, perhaps claiming that the details of the 1679 Act were not binding, or that Merryman would probably never be brought to trial (in fact Merryman was never tried).

Another option that Lincoln likely considered was to designate Merryman and his cohorts as prisoners of war, so they could be kept in military confinement.  That option was advocated by, for example, U.S. District Judge John Cadwallader, who was the brother of an Army General deeply involved in the Merryman case.  But there were drawbacks to that approach too.  Not everyone who commits treason is engaged in warfare, and vice versa.  Moreover, the eminent English jurist Lord Mansfield wrote to another British official in August of 1776 that in this gray area the choice may well belong to the prisoner (“it is their own doing”) to either seek a writ of habeas corpus and risk being tried criminally, or instead choose POW status.

Justice Scalia focused attention on two factors: “English practice and the Clause’s placement in Article I.”  Regarding the latter, Taney erroneously opined in Merryman that Article I, Section 9 of the Constitution “has not the slightest reference to the executive department,” and everyone now agrees that neither that section’s Appropriations Clause nor its Foreign Emoluments Clause limits only Congress.  Moreover, the draft Suspension Clause initially mentioned the federal “legislature,” but that was deliberately removed.  So, the best argument against what Lincoln did is that it allegedly conflicted with English practice.  According to the legal historian Sidney George Fisher:

The Habeas Corpus Act can only be suspended by Parliament; but in the absence of Parliament, or even when Parliament is in session, and the case demanded instant and secret action, the Ministers of the Crown, when the public safety has, in their opinion, required it, have habitually taken the responsibility of suspending the benefits or privilege of the writ. When Parliament meet, they immediately ask for a bill of indemnity, and also for a suspension of the act itself, should the danger continue. The consent of Parliament is therefore required for any invasion of personal liberty, either before or after such invasion, has always been asked since the statute of 31 Charles II, and has always been granted.

So, old English practice does support a limited presidential power to suspend the privilege of the writ of habeas corpus without prior congressional authorization, but the president puts himself in peril if Congress does not subsequently consent to it.  Another issue is whether Congress waited too long to give its retroactive consent to Lincoln’s actions with regard to Merryman, and congressional action later in 1861 was probably good enough.  In the interim, Lincoln had power to do what he did, and Taney erred.

Further Thoughts on the SOGI Cases before the Supreme Court
David Weisberg

James Phillips and Ryan Nees offer (herehere and here) dueling versions of corpus linguistics (“CL”) analyses of that part of Title VII which makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]”  42USC Sec. 2000e-2(a)(1).  That language currently is in focus because the U.S. Supreme Court has sub judice in which plaintiffs assert that Title VII prohibits employers from discharging employees because of the employees’ sexual orientation or gender identity (“SOGI”).  The conflicting CL analyses present issues that are enormously recondite and obscure.  But, in my view, they amount to breaking a butterfly upon a wheel.  There other, simpler ways to resolve these cases. 

First, compare the above actual text of Title VII with this hypothetical version: “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, sexual orientation, gender identity, or national origin.”  I think every competent speaker of English would agree that the actual language of Title VII and the hypothetical language have different meanings.  That is, they have different meanings today, and they would have been understood to have different meaning in 1964.  (Indeed, I think there is a real question, which CL might indeed resolve, whether in 1964 the average intelligent native speaker of American English would have assigned any meaning at all to the phrase “gender identity”.)  The SOGI plaintiffs ought to prevail only if the two versions can reasonably be said to have the same meaning at some relevant time.  Having failed to make that showing, the plaintiffs should lose.

The same point can be made in this way: no one could truthfully say that the gay applicant was not hired or the gay employee was fired “because of such individual’s … sex.”  If one took an oath to tell the truth, the whole truth, and nothing but the truth, one would have committed perjury if, in answer to the question “Why was this male applicant rejected?”, someone with knowledge of all the facts asserted: “He was rejected because of his sex.”  Any competent speaker of English understands that this answer is true only if the employer never hires men, or never hires men for the position in question.  If the applicant was rejected because he was in a sexual relationship with another man, the whole truth is that he was rejected for just that reason, and not because of his sex.    

Implicitly conceding that the plain meaning of Title VII refutes their position, the SOGI plaintiffs argue that plain meaning is irrelevant, because the word ‘because’ in the statute has—or, at the very least, can fairly be given—a technical, legalistic meaning: the word ‘because’ denotes ‘but for’ causation.  Thus, if an employee is, e.g., discharged because of sexual orientation, analysis reveals that the individual’s sex must be a ‘but for’ cause of the firing, which implies the employee was fired “because of such individual’s… sex” in violation of Title VII. 

We know that ‘but for’ causation is typically applied in personal injury cases to determine whether, in the train of physical causation that ultimately resulted in plaintiff’s injury, some specific negligent act or omission was sufficiently incorporated in that train to be a proximate cause of the injury.  An employer’s motive for discharging an employee is not any part of a train of physical causation, unless one thinks of the mind/brain as a kind of Rube Goldberg mechanism in which a squirrel takes a nut from one side of a balance scale, causing the scale to tilt, which then upends a glass of water, which … etc.  The concept of ‘but for’ causation would, on its face, seem inapplicable to human motives and decision-making.  Nevertheless, during oral argument several Justices seemed to seriously entertain the idea.

The ‘but for’ gambit has two flaws, and one of them is fatal.  The first flaw—nonfatal, but nevertheless troubling—is that the ‘but for’ argument seemingly applies only to sex, and not to any other characteristic protected in Title VII.  Suppose, e.g., an employee is married to a person of a particular national origin, and the employer fires the employee for just that reason: the employer abhors persons of that particular national origin and anyone associated with such persons.  The spouse’s national origin would seem to qualify as a ‘but for’ cause of the termination, but, because the employee’s own national origin was irrelevant to the employer’s decision, there could not conceivably be a violation of Title VII.  The same would be true of an employer who fires an employee because of the race, color, or religion of the employee’s partner or spouse, where the employee’s own race, color, or religion plays no part in the decision.

The fatal flaw in the ‘but for’ position is that it generates a reductio ad absurdum.  The SOGI plaintiffs contend that a gay male employee who is fired would not have been fired ‘but for’ his sex.  But, by precisely the same token, the male employee would not have been fired ‘but for’ his partner’s sex.  That is, if a male employee had a female partner, there would be no firing.  And if both ‘but for’ causes are thought to operate simultaneously—that is, if both the male employee’s sex were different and his male partner’s sex also were different—that would result in a female employee with a female partner, and that employee also would be fired by an employer who by hypothesis abhors same-sex relationships.  Each ‘but for’ cause—the employee’s sex, and the employee’s partner’s sex—equally qualifies as the ‘but for’ cause of the termination.  Thus, one and the same firing both violates Title VII (because the sex of the employee is the ‘but for’ cause) and does not violate Title VII (because the sex of the employee’s partner is the ‘but for’ cause, and we have seen that the protected characteristics do not extend to partners or spouses of employees).  That result—a single act that simultaneously violates and does not violate a statute—is absurd.


Steven Douglas Smith: Why School Prayer Matters
Michael Ramsey

Steven Douglas Smith (University of San Diego School of Law) has posted Why School Prayer Matters (7 pages) on SSRN.  Here is the abstract:

Recently President Trump has been emphasizing the importance of school prayer and promising “big action” on the subject. Although the President’s understanding and intentions are difficult to discern, his statements provide an occasion for remembering the audacity of the Supreme Court’s school prayer decisions, and their transformative significance not only for the jurisprudence of church and state but for the national self-understanding.

And from body of the paper:

[The] regular recitation [of prayer] in public schools was expressive of– and constitutive of-- a nation that considered itself to be, as the Pledge of Allegiance puts it, “under God.” This understanding was subtly communicated both to fidgeting or distracted students and to the citizenry as a whole. Conversely, the official elimination of school prayer– its elimination on the proclaimed if implausible premise that the nation’s constitutive instrument, the Constitution, prohibited such prayers– both expressed and helped to inculcate a very different national self-understanding. This newer self-understanding represented a decisive break with American traditions. Although the words “under God” were added to the Pledge in the 1950s, they were of course taken from perhaps the most revered official expression in our history: we are, Lincoln had declared in his Gettysburg Address, “this nation, under God.” And Lincoln was speaking within a well-established constitutional tradition. Thus, in the first presidential inauguration, George Washington had offered these earnest words:

[I]t would be peculiarly improper to omit in this first official Act, my fervent supplications to that Almighty Being who rules over the Universe . . . . No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency . . . .

Through much of American history, such unapologetic invocations were common enough. Even irreverent and supposedly “secular” figures like Thomas Jefferson eloquently called upon deity in their official statements. And as late as 1952 the Supreme Court itself could declare that “we are a religious people whose institutions presuppose a Supreme Being.” Insofar as constitutional jurisprudence from the school prayer decisions onward has insisted on a secular governmental sphere, it has in a very real sense cut us off from our own past. We gaze back at Washington and Jefferson and Lincoln from across a gaping constitutional divide.

And in conclusion: 

But might that traditional self-understanding ever be revived as an official matter-- in actual constitutional doctrine? And might the judicial decisions that more than any others helped to marginalize and displace the founding and traditional understanding of this nation as one “under God”– namely, the school prayer decisions-- themselves come in for judicial reexamination?

The prospects may seem unlikely. But who knows? History, like its Author, can work in mysterious ways.


Anthony Peacock Reviews "The Cambridge Companion to The Federalist"
Michael Ramsey

At Law & Liberty, Anthony A. Peacock (Utah State, Political Science): Debating Publius (reviewing The Cambridge Companion to The Federalist (Jack N. Rakove & Colleen A. Sheehan, eds., 2020)).  From the introduction: 

... The Companion, which exceeds 600 pages, consists of 16 essays by prominent academics in the fields of political science, history, and law and runs the gamut of the ideological spectrum. As the editors note in their Introduction, The Federalist is thought by many, at least in political science, to be the consummate “exposition of the original meaning of the Constitution;” perhaps the best explanation of both the theory underlying the Constitution and its meaning by those who ratified it.

But historians disagree with political scientists. So Rakove and Sheehan propose. Being much more skeptical about whether The Federalist or the ratification debates actually captured the true state of public opinion in the late 1780s, historians doubt whether ideas prevailing at any time can fix the meaning of a written text like the Constitution. “The legal fiction of originalism might have its uses within the courts of constitutional jurisprudence,” the editors remark, “but it could never provide an adequate way to assess the true meaning of the Constitution. For historians the clock of constitutional time never stops running.” We might translate the dispute here in today’s vernacular to the debate between constitutional originalists and those who advocate for a “living constitution,” a constitution susceptible to ever-changing meaning as history progresses.

To some extent this is how the contributions to the Companion read. There are those who view The Federalist as indeed the consummate guide to the Constitution. Others, like the opening essay by David Siemers in defense of the Anti-Federalists, pooh-pooh it. Indeed, one of the more mysterious features of the Companion is that its very first essay is from front to back a broadside against Publius’ work.

In conclusion:

The defects of the Companion are few while the richness of the essays and the comprehensiveness of their analysis of The Federalist is a reminder not only of just how different the founders’ political science was from the political science of today but how much more capacious their constitutionalism was. Rakove and Sheehan are to be commended for putting together a volume that addresses an old text in way that reminds us what a faithful companion Publius was to the Constitution and will continue to be well into the future.

For what it's worth, I (and I think most legal academic originalists) would disagree with both political scientists and the historians (as the review describes them).  The Federalist is not the "consummate exposition of the original meaning of the Constitution" -- it's an important source, to be sure, but it's not a wholly objective one; it's one side of an argument, and it's by no means infallible or incapable of guile. On the other hand, while it may be true that "For historians the clock of constitutional time never stops running" (whatever that may mean), the clock of constitutional time had a starting point, and The Federalist is an important (though not definitive) guide to meaning at the time the clock started.


Originalism and Secession
Michael Ramsey

In his recent book  American Secession: The Looming Threat of a National Breakup (Encounter Books, 2020), F.H. Buckley (a non-originalist) says that “the constitutional originalist must . . . conclude that the states had a right to secede.”  (This is mostly an aside, as the book is not principally about originalism).  In the current Balkinization symposium on Professor Buckley's book, Robert Tsai (American University) objects

[T]he answer isn’t obvious. Buckley doesn’t adequately grapple with the text of the Constitution, which neither establishes a right to secede nor prohibits it explicitly. Yet it does expressly change the terms of political community, as well as its foundations. It does so by dropping the Article of Confederation’s language of “confederation” and the more strident rhetoric of state “sovereignty”—along with the power of a single state to stop a constitutional amendment dead in its tracks—in favor of “the people of the United States” forming a new government based entirely on a new formula that gives no such veto power to any single state.
These changes, as Bruce Ackerman, Akhil Amar, and many others have pointed out, reflect a powerful rejection of the compact theory as the basis for self-rule in favor of an account of sovereignty grounded in the “people of the several states.” The states retain form and authority, but they have been dethroned in our political theory as the genesis of sovereignty—it rests in the hands of the people themselves. At least that’s what the Constitution seems to say and the Framers’s own example demonstrates. Of course, it’s a separate question entirely how many people remember or accept this move, and for that matter, what lessons later generations might draw from this precedent.
But changing the rules collectively once doesn’t mean that just anyone can change the rules again—or more importantly, that one segment of the citizens can do so through unilateral action. In fact, a self-executing right of secession would have greatly alarmed most of the Framers, particularly the Federalists driving the project of renewal, given their general mission to strengthen federal power as the primary method of enhancing “a firm union.” It would also have worsened the problems of faction with which they were intensely occupied if a single state could rattle its saber and threaten to dissolve the union or depart every time it disagreed with a piece of legislation or a president’s order.
Now, Buckley cites Federalist No. 43 as if it unquestionably settles the matter, but of course that pamphlet did no such thing. Toward the end of that essay, Madison takes up the issue of why the “Confederation . . . can be superseded without the unanimous consent” the states. He invokes the nature of a “compact between independent sovereigns,” which, according to well-established treaty principles, allows a party to it to claim that the agreement has been “violated and void.” That’s correct given the original terms of who entered into that agreement. Behind that contract principle, of course, is the deeper right of self-governance rooted in natural law. But Madison nowhere asserts that if the Constitution were approved based on the new theory of self-governance, a single state or even a few disgruntled states, can dissolve it.
Indeed, Madison insists, in a letter dated January 1, 1833 to Alexander Rives, that “a rightful secession requires the consent of the others, or an abuse of the compact.” The idea that “a single State has a right to seceded, at will from the rest . . . would not, till of late, have been palatable anywhere.” Even if secession could be done, it would have be accomplished “without injustice or injury to the Community.” Think of the “consequences,” including the dismemberment of territory. An individual expatriate could not, for instance, “withdraw his portion of territory from the common domain.”
Agreed, and I think the counterargument is even stronger that Professor Tsai puts it.  I would sketch the argument this way:
(1) The Constitution declares that it and federal statutes (and treaties) are the supreme law of the land, notwithstanding any state laws or state constitutional provisions to the contrary (Art VI).  Thus, not only does it not provide any express (or, I would say, implied) power of states to secede, it directly declares that states as states do not have the power to displace the Constitution or federal law.
(2) As Professor Tsai says (following Ackerman, Amar, etc.), the Constitution's preamble invokes the people of the United States, not the states, as the possessors of ultimate sovereignty (a point reaffirmed in the Tenth Amendment).  The Constitution thus is not a compact of the states, and whatever could be implied about secession from a compact of states doesn't apply to the Constitution.  While I wouldn't endorse everything that Ackerman and Amar draw from this proposition, it does seem at minimum to further reject the idea of the states having a reserved right of secession. 
(3) I'm not aware of any commentary from the ratification debates indicating that if states tried out the Constitution for a while and didn't like it, they could withdraw.  If that had been a common understanding, it would have been a good argument for Federalists to deploy, as it would suggest that states would not be risking much in giving the Constitution a try.  But in fact, as Professor Tsai says, Federalists most likely had the opposite view given their desire for a stronger union.
(4) Professor Buckley rests principally on Federalist 43, but Professor Tsai counters (and I agree):
Buckley cites Federalist No. 43 as if it unquestionably settles the matter, but of course that pamphlet did no such thing. Toward the end of that essay, Madison takes up the issue of why the “Confederation . . . can be superseded without the unanimous consent” [of] the states. He invokes the nature of a “compact between independent sovereigns,” which, according to well-established treaty principles, allows a party to it to claim that the agreement has been “violated and void.” That’s correct given the original terms of who entered into that agreement. Behind that contract principle, of course, is the deeper right of self-governance rooted in natural law. But Madison nowhere asserts that if the Constitution were approved based on the new theory of self-governance, a single state or even a few disgruntled states, can dissolve it.
In any event it seems quite untrue that originalists "must" accept the constitutionality of state secession.


A Response to Ryan Nees on Textualism and Title VII [Updated] [Further Updated]
James Phillips

[Ed.: James Phillips is a Nonresident fellow with the Constitutional Law Center at the Stanford Law School.]

My piece shows that this is a mistake—that the textualist arguments for the plaintiffs in the Title VII cases actually overlook a plainly linguistic, and thus textualist, consideration: the principle of compositionality.  I explain and then apply this principle to the linguistic data available in both dictionaries and the largest available database of English texts from the time of Title VII’s enactment (the Corpus of Historical American English, or “COHA”). 

Doing so shows that on the most faithful reading of the text of Title VII, its ban on sex discrimination applies only to differential treatment based on “unfair beliefs or attitudes directed at some or all men in particular, or at some or all women in particular—whether the beliefs be outright misconceptions or just unduly rough or weak generalizations; and whether the attitudes be indifference, discounting of interests, distaste, or outright antipathy” (6). (I also show that this reading fits well with the Supreme Court’s precedents on Title VII.) The plaintiffs’ reading of Title VII contradicts this reading, so it “produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument” (3).

Rising Stanford 3L Ryan Nees has posted a thoughtful reply to my essay on the American Constitution Society’s blog. I write with a few reactions. Given the limited nature of a blog post, I won’t address every concern I have with Mr. Nees’s post, but just focus on some points related to corpus analysis and the statute’s BFOQs.

Mr. Nees alleges that I have “effectively incorporate[d] purpose into the very meaning of the words of the statute.” But nowhere does my analysis delve into congressional intent or analyze the type of evidence one would to divine such (legislative history, etc.). Instead, it merely takes the operative words at the statute and looks at how they were used by ordinary Americans and defined at the time Title VII was enacted. It’s hard to think of a more textualist way to approach interpretation. If that’s purposivism, then everything is.

As to my reliance on the uses of “discriminate against” in the database of English texts, Mr. Nees contends that my analysis goes awry because the phrase “discriminate against” appears only 125 times out of the 48 million words in the databases’ texts from the 1950s and 60s. But here Mr. Nees is focused on the wrong denominator. If we’re trying to see if “discriminate” had taken on the kind of pejorative sense described in my piece, the absolute number of times that the phrase “discriminate against” appears is irrelevant. The question is how often “discriminate” is paired with “against” as opposed to other words. And it turns out that this pairing occurs over half the time the word discriminate is used and is five times more likely the next most frequent pairing.

More to the point, my submission is not just that “discriminate against” should be analyzed under the notion of compositionality (a notion Mr. Nees seems to confuse with the related notion of an idiom), but that it’s the whole operative language of Title VII that should be examined, to the extent possible. That language is “discriminate against any individual . . . because of such individual’s  . . . sex” So Mr. Nees’s ability to find cases where “discriminate against” did not connote prejudice, when used in reference to things like commerce, has no bearing on the meaning of “discriminat[ion] against” someone because of a suspect classification or characteristic. So Mr. Nees’s focus on “discriminate against” in isolation from a protected classification falls into the same error as the petitioners—trying to slice and dice the language contrary to the principle of compositionality.

In other words, no one denies that“discriminate against” can be used in other contexts involving no prejudice. But in focusing on this point, Mr. Nees’s analysis overlooks the usefulness of a corpus: the ability to drill down on context. Title VII doesn’t prohibit discriminating against just anything. It prohibits discriminating against an individual because of that individual’s enumerated group characteristic. So that is the only context that matters. Likewise, if I’m trying to understand what it means to “read a book,” it would make little sense to look in a corpus at instances of “reading the sky” or “reading body language.” It’s just not the relevant linguistic context.

Mr. Nees also turns to a different corpus—one of Supreme Court opinions—and argues that I overlook the possibility that “the phrase’s usage in the legal context may have differed from popular usage.” But no one in the briefing or arguments has ever argued that Title VII is using a legal term of art. Besides, if we were to pursue this suggestion seriously, looking at a corpus of Supreme Court opinions alone wouldn’t do the trick. We would need to look at a corpus of legislation and other legal materials as well.

Moreover, Mr. Nees’s findings about the corpus of Supreme Court opinions don’t get him where he appears to want to go. He notes that “discriminate against” appears three times as often in the Supreme Court corpus than in COHA. The fact that something appears more often in a legal corpus than an ordinary corpus does not mean that it has a specialized legal meaning. Take the noun “court.” In COHA, the word appears 237 times per million words. In the Supreme Court corpus Mr. Nees used, “court” appears 80,447 times per million words, or 339 times more frequently than in the ordinary corpus. But no one would think this shows that “court” has a special legal meaning that diverges from the ordinary meaning.

Mr. Nees performs collocate analysis on the term “discriminate against” in the Supreme Court corpus. But that is just not the relevant corpus for understanding the ordinary meaning of the non-technical phrase as it appears in Title VII. So it tells us nothing of value. With a corpus, if you ask the wrong questions you’ll get the wrong answers. Likewise if you use the wrong corpus.

Finally, Mr. Nees notes that after forbidding “discriminat[ion] against” individuals “because of” their “sex,” Title VII makes an exception for cases where sex is “a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” But this exception would be redundant, Mr. Nees argues, if Title VII’s main operative language only ever covered employment actions based on prejudice, since actions based on BFOQs are not rooted in prejudice. So the main operative language in Title VII must sweep more broadly. It must include more than employment decisions rooted in a “prejudicial motive.” And this, Mr. Nees supposes, refutes my linguistic argument.

But I did not suggest that Title VII’s main operative language (“discriminate against an individual . . . because of such individual’s. . . sex”) is limited to employment policies rooted in irrational hostility (such that employment policies based on BFOQs would clearly fall outside the ban from the get-go). Just the opposite: I wrote that the main  operative language would cover employment policies based not only on “outright misconceptions” about the sexes, but also on “unduly rough or weak generalizations” based on sex (6). Given this reading, the BFOQ exception has a critical job to do: it’s there to tell us when a particular generalization about one of the sexes is compelling enough to provide a lawful basis for a given employment action.  

For example, a refusal to hire women as close-contact guards at a maximum-security prison for men obviously rests on some generalizations about women as compared to men. Those generalizations might be “unduly rough or weak” for some purposes and not for others. How to tell which they are here? By asking if this is the particular kind of work for which maleness is a BFOQ. (The Supreme Court held that it was in Dothard v. Rawlinson, 433 U.S. 321 (1977).) This example proves that the BFOQ provision is anything but redundant under my reading of the main operative language of Title VII. 

Further, it is common for laws to provide clarity as to where the line is (as Pam Karlan noted in her briefing before the Court, “Congress is free to take a ‘belt-and-suspenders’ approach”). The classic historical example of this is the Bill of Rights. The Federalists said a bill of rights was not necessary since the federal government could only exercise limited, enumerated powers anyway, and those limited powers did not allow the federal government to infringe rights. The Antifederalists, however, were presciently worried that the federal government’s powers might be construed more broadly. So they demanded explicit constitutional protection of certain rights. By Mr. Nees’s logic, the Bill of Rights is redundant. Does anyone today think so? But in the end, it is only the text that matters. We look at the words and give them their best reading. And that reading of Title VII, in the context of sex, requires a prejudice lacking in the cases before the Court, despite Mr. Nees’s best efforts to contend otherwise.

UPDATE (by Michel Ramsey):  Ryan Nees responds:

I’d just add a few sentences by way of rejoinder. The major conceptual move Phillips makes is his insistence on focusing on what he calls the “relevant linguistic context.” But doing so stacks the deck: if Phillips gets to decide which uses of the phrase are “relevant” and which are not, it will of course take on whatever meaning he wants it to, even where (as here) most of the usages cut the other way. To be sure, we shouldn’t derive ordinary meaning from frequency alone, and Phillips’s argument now implicitly acknowledges the “faulty frequency hypothesis” that corpus linguistics advocates once made. But what he’s replaced it with shows the risk in the corpus linguistics enterprise: it permits cherry-picking, just as some judges used to do with legislative history.

FURTHER UPDATE: James Phillips answers:

Two quick thoughts on Mr. Nees’s sur-reply:

1.  Relevance and cherry-picking:  Nees charges that I've "stacked the deck" by allowing myself to decide what the "relevant" phrase is.  But doing that is step one (or step zero) of any interpretive argument.  The key is to let the statute and the interpretive question determine what is "relevant."  Here I took my cue entirely from the Title VII language on which all agree that these cases turn: “discrimination against an individual … because of such individual’s … sex.”  I looked for structural parallels of that language in a corpus of enactment-era texts.  And I used a corpus of ordinary texts because the key statutory language is non-technical.  It is Nees's decision to turn to a corpus of Supreme Court opinions that is cherry-picking, because it has no discernible motivation.  While the corpus of judicial  opinions would be relevant for determining the sense of a term of art, no one (including Nees) has even argued that Title VII's key language here contains any term of art. Likewise is it cherry-picking to rely on portions of the operative language in irrelevant contexts, such as discrimination against commerce.

2.  Frequency: Mr. Nees appears to have confused the “faulty frequency hypothesis” with my acceptance of a much simpler and uncontroversial proposition. That proposition is this:  relying on the frequency of the wrong linguistic phenomena is faulty, but relying on the frequency of the right linguistic phenomena can be highly probative evidence in the quest to operationalize ordinary meaning.  As for what is the "right" linguistic phenomena, see point 1.  


Mila Sohoni: The Power to Vacate a Rule
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Power to Vacate a Rule (George Washington Law Review, Vol. 88, 2020) (70 pages) on SSRN.  Here is the abstract:

A vigorous debate has emerged concerning the legality and desirability of the “universal” or “nationwide” injunction. A key part of this debate implicates the meaning of the landmark statute that governs judicial review of agency action, the Administrative Procedure Act (“APA”). Many recent suits seeking nationwide injunctions have levied challenges to federal agency action, and in particular to federal rules. If the APA authorizes a federal court deciding such a case to “set aside” a rule universally—not just to “set it aside as to the plaintiffs”—then the APA authorizes courts to provide exactly the kind of relief that opponents of universal injunctions say that courts should not be able to give: relief that reaches beyond the plaintiffs to everyone. Moreover, if the reviewing court can vacate a rule universally at the merits stage, then the APA plainly authorizes the court to issue a preliminary nationwide injunction that halts the enforcement of the rule universally pending the court’s merits decision on whether to vacate the rule.

In various lawsuits, including in a case that the Supreme Court will decide this Term, the DOJ has argued that the APA does not authorize a federal court to vacate or enjoin a rule universally. Some scholars have voiced the same claim. This Article rebuts that reading of the APA. Drawing upon the APA’s text and structure, the landscape against it was enacted, its legislative history, and evidence of how courts, Congress and commentators have understood the APA in subsequent decades, this Article concludes that the APA authorizes the “universal vacatur” of federal rules, as well as universal preliminary injunctions against their enforcement. The Article then briefly addresses broader considerations of political legitimacy and institutional competence connected with this dispute over the APA’s remedial scheme.

The original meaning of the APA is getting to be an important area of inquiry. (See also: Evan Bernick's Envisioning Administrative Procedure Act Originalism.)

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


Silvio Roberto Vinceti: Abstract Clauses and the Descriptive Limits of Originalism
Michael Ramsey

Silvio Roberto Vinceti (Ph.D. candidate, University of Modena and Reggio Emilia) has posted Abstract Clauses and the Descriptive Limits of Originalism: Embracing Legal Realism (69 pages) on SSRN.  Here is the abstract:

There seems to be an intuitive distinction between the concrete and abstract clauses of the U.S. Constitution: If concrete clauses–such as the Article II’s requirement that the U.S. President be at least thirty-five years of age–appear fairly uncontroversial as to their meaning and reference, abstract clauses–such as the Eighth Amendment’s prohibition of “cruel and unusual punishments”–show a more vague and debatable content.

In the Article, I argue that the peculiar modality of legal change abstract clauses undergo thwarts a complete understanding of the U.S. Constitution in originalist terms. I take up Dworkin’s “moral reading” originalism and Bork’s “orthodox” one as two archetypal reconstructions of the framers’ intent in regard to abstract clauses. Despite substantial differences, both a Borkean and Dworkinian originalism share a commitment to a formal understanding of abstract clauses. For different reasons, however, they both fail in providing a sound account of abstract clauses’ change over time: If Dworkin’s account seems at variance with the rationale of a rigid constitution, a Borkean conception of abstract clauses, although interpretatively sound, appears at odds with reality.

From the failure of the two reconstructions, I deduce several conclusions. First, that the best way to make sense of the abstract clauses’ change is to give up any formalist account thereof: Abstract clauses give rise to a plain instance of informal legal change, the reason for that possibly being that formalism is in competition with other human values–namely, the desirability of the outcomes. In that abstract clauses do not comport with formalism, an originalist account thereof is not descriptively accurate.

But if abstract clauses do not abide by formal legal reasoning, the lawyer might wonder how to deal with them–especially, when faced in court. I contend that philosophy of language could hardly be of any help, despite the fact that abstract clauses recall the vagaries in reference “indexicals” bring about in analytic philosophy. Conversely, the employment of disciplines that study human behavior in different normative domains might prove decisive.

If these reflections wound up agreeable, the validity of the insights of American legal realism would be reaffirmed. On the one hand, constitutional law is, to some extent, “legally indeterminate”; on the other, empirical social sciences–not armchair philosophy–are our best ally in addressing the indeterminacy.


Ryan Nees on Corpus Linguistics and Title VII
Michael Ramsey

At the ACS Expert Forum, Ryan Nees (Stanford J.D. '21):  A New Textualist Argument in the Title VII Cases, and the Risks of Corpus Linguistics.  From the introduction:

The Title VII cases pending before the Supreme Court are a notable test for conservative proponents of textualism, ...

[L]ast week James C. Phillips sought to recast the textual evidence with a subtly modified claim relying on corpus linguistics. For a textualist like Justice Gorsuch, who may be attracted to petitioners’ analysis but concerned about the outcome that would result, Phillips’s intervention could provide important new textual evidence.

Phillips’s intriguing argument is worth carefully considering, and is an instructive application of the larger project urging judges to make greater use of corpus linguistics to derive contemporaneous meaning. He argues, in summary, that the petitioners’ textualist reading depends upon “separately analyzing and then amalgamating . . . three parts” – namely, the words “discriminate,” “against,” and “sex.” Analyzed in that way, the LGBTQ petitioners may have a point, and  Justice Gorsuch seemed to acknowledge as much at oral argument. The better approach, Phillips says, would be to assess the distinct meaning of the phrase “discriminate against,” which has its own highly specific connotation entailing prejudice as a motivation, especially when the phrase is paired with a suspect class.

Corpus linguistics could be a useful resource to identify idiomatic meaning of this sort. But the surprising consequence is that, the more idiomatic the meaning uncovered, the more purposivist the reasoning starts to appear. And for reasons I explain, Phillips’s analysis is unpersuasive on its own terms, relying on a limited linguistic corpus while overlooking any possible legalistic meaning that prevailed at the time. It seeks to create a new term of art even as textualists have traditionally disfavored doing so. As the corpus-linguistic method rises in popularity as a tool of statutory interpretation, the Title VII case study demonstrates its risks.

And in conclusion:

Phillips’s argument demonstrates how frustrating it can be for some textualists to deny themselves purposivist evidence: it tempts them to find particular forms of intent in words themselves, because it generally can’t be considered at the level of an overall statutory scheme. At the very least, if textualist judges are to accept corpus linguistics evidence of meaning, as Phillips has elsewhere urged should be prominently integrated into originalist methodology and textualist statutory interpretation, they should demand clearer and better evidence than that which exists in the Title VII cases.


Faithless Electors Today [Update: Prakash Agrees]
Michael Ramsey

Today is the Supreme Court argument in Chiafalo v. Washington and Colorado Department of State v. Baca, the "faithless electors" cases.  The briefs on both sides are heavily originalist/textualist.  The electors' brief focuses on the original meaning of series of words and phrases in Article II: "electors," "vote by ballot" and the states' power "to appoint" electors.  The states' brief counters (as the heading of the first section of their argument) that "The Text and Original Understanding of the Constitution Demonstrate State Authority to Remove or Penalize Electors Who Violate the Conditions of their Appointment."

There's been much speculation in commentary about the framers' intent in creating the electoral college.  I think that  speculation is fruitless and misconceived methodologically.  As David Schwartz shows in the interesting post excerpted here yesterday, the framers had a range of views on the college; many of them had unknown views, and some may not have had any fully formed view.  The only thing we know they agreed on is the structure of the college described in the Constitution's text.  Speculation beyond the text is no more than speculation.

As to the text, it seems straightforward.  States appoint electors in the manner their respective legislatures choose.  There are no limits on the criteria states can use.  So states can pick electors with a view to the electors exercising discretion in the balloting, or states can pick electors based on the electors' commitment to vote a certain way.  True, some framers did have the idea that electors would exercise deliberative choice, but nothing in the text requires that and nothing in the surrounding circumstances indicates that the framers collectively had a background understanding that this would necessarily occur.  So the modern system of appointing electors pledged to a particular candidate seems entirely within the bounds of the text, irrespective of what any framers might have thought about it.

But that's as far as the text goes.  The text does not give the states any power relating to electors other than appointment.  Nothing in the text gives states power to remove electors or to fine electors who don't vote as promised.  The states say these powers are implied by the power to appoint, but I'm doubtful.  Prior to the Seventeenth Amendment, state legislatures also had power to appoint Senators, which they often did with expectations of how the Senators would vote, but no one supposed that states could remove or fine Senators for voting contrary to their promises.

In sum, Article II gives the states considerable power over electors through the power of appointment (so much so that as a practical matter the outcome of these cases probably doesn't matter much).  But the text does not give states unlimited power over electors -- just the power to appoint.

UPDATE:  In the Wall Street Journal, my sometime-coauthor Saikrishna Prakash makes a similar argument (among others): ‘Faithless’ Electors Are Faithful to the Constitution.  From the core of the argument:

The court should nullify state laws that impinge upon the discretion of presidential electors. While the states appoint electors, they lack the power to remove them or control their votes—as was true for state-appointed U.S. senators before the 17th Amendment. Once selected, presidential electors have the constitutional right to vote as they please.

He goes on to rely a bit more than I would on the framers' supposed intent to create a deliberative system, perhaps implying that even requiring pledges from electors prior to appointment is unconstitutional under the original design.