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27 posts from June 2020


Gregory Ablavsky on Territorial Appointments and FOMB v. Aurelius Investment
Michael Ramsey

At Balkinization, Gregory Ablavsky (Stanford), guest-blogging: PROMESA and Original Understandings of the Territories’ Constitutional Status.  From the introduction:

[Financial Oversight and Management Bd. v. Aurelius Investment] presented another iteration of the Court’s long-running attempts to make sense of the constitutional status of the territories. The question was whether congressional appointments of territorial officials to Puerto Rico’s financial oversight board required presidential nomination and Senate confirmation consistent with the Appointments Clause.  A unanimous Court said no.  A seven-Justice majority reasoned that the fact that federal law created the office did not transform the appointee into an officer of the United States, pointing to long-standing practice, although it noted that some high-level territorial officials did seem to require federal appointment.
Justice Thomas, however, would have gone further.  Arguing for a very sharp distinction between territorial and national power, he insisted that Congress reenacted the Northwest Ordinance to conform with the Appointments Clause because St. Clair and other territorial governors were also superintendents of Indian affairs, they wielded “powers of the National Government,” not the local government.  The First Congress, he insisted, “recognized the distinction between territorial and national powers.”
Unfortunately, this just-so story doesn’t fit the history....
And in conclusion:
So who does have it right?  I think the majority is on the right track when it recognizes both that a line between “territorial” and “national” power existed but that it was not always cleanly or neatly drawn.  But I actually think Justice Sotomayor’s concurrence—although it focused much more on the history of Puerto Rico—more accurately reflects how many in the territories would have thought about the relationship.  Sotomayor’s argument was that we should see territorial authority in the instances when the people of the territories themselves play a role in conferring that authority. That, in fact, was what those in the first territories clamored for—a chance to choose their own officers themselves, a view consistent with the Court’s own statements about democratic accountability in the context of commandeering. And Congress eventually listened: ironically, in contrast to the celebrated Northwest Ordinance, which created one of the least democratic forms of governance in U.S. history, later territorial governments provided for much greater popular input and control. In my view, this more functional test—rather than a formalist divide anachronistically thrust onto the First Congress’s unexplained actions—better captures what early Americans were arguing about when they argued over the territories.


Justin Aimonetti: The Intellectual Incubator of Judicial Review
Michael Ramsey

Justin W. Aimonetti (University of Virginia School of Law, J.D. '20) has posted Colonial Virginia: The Intellectual Incubator of Judicial Review (106 Va. L. Rev. 765 (2020)) (46 pages) on SSRN.  Here is the abstract:

What is the historical origin of judicial review in the United States? Although scholars have acknowledged that British imperial “disallowance” of colonial law was an influential antecedent, the extant historical scholarship devoted to the mechanics of disallowance is sparse. This limited exploration is surprising. Not unlike modern judicial review, the guiding question imperial overseers considered when disallowing colonial legislation was whether it was ‘repugnant’ to the laws of England. In response, this Note’s first contribution is to explain the process by which the so-called repugnancy principle was enforced against inferior colonial law. Even fewer scholars have attempted to connect the ultimate repugnancy assessment to the historical context surrounding disallowed colonial laws. This Note’s second contribution is thus to augment existing literature by exploring colonial Virginia’s specific experience under imperial supervision. Among the scholars that have explored the connection between colonial disallowance and the origins of judicial review, some have documented the link between imperial legislative review of colonial legislation and James Madison’s proposed constitutional solution to the problem of unrestrained state legislatures in the aftermath of independence. What remains to be explored, however, is how Madison explicitly drew on the history of imperial review of colonial Virginia’s laws as he argued at the Constitutional Convention for a federal power to “negative” state laws. Accordingly, this Note’s third contribution is to reveal that the historical practice of imperial review in Madison’s native Virginia animated his proposed solution to check the unrestrained popular will of state legislators. Although his proposed solution was ultimately rejected at the Convention, that rejection was conditioned on the judiciary possessing the power of judicial review. By exposing this hidden link, this Note demonstrates that colonial Virginia rightly may be regarded as the intellectual incubator of judicial review.


The Supreme Court, FOMB v. Aurelius Investment, and the Insular Cases
Michael Ramsey

At Slate, Kyla Eastling, Danny Li & Neil Weare: The Supreme Court Just Passed Up a Chance to Overrule Appallingly Racist Precedents.  From the introduction:

The Supreme Court just can’t seem to quit the Insular Cases, a series of controversial decisions from the era of Plessy v. Ferguson that established a doctrine of “separate and unequal” status that has justified denying basic constitutional rights and protections to the nearly 4 million Americans living in Puerto Rico and other U.S. territories.

On Monday, the Supreme Court unanimously upheld [ed.: in Financial Oversight and Management Board v. Aurelius Investment LLC] the constitutionality of the Financial Oversight and Management Board for Puerto Rico—an undemocratic, federally appointed body with near-total authority over Puerto Rico’s budget and finances. In doing so, the court once again avoided the opportunity to finally overrule the Insular Cases. Parties on both sides called on the court to expunge this shameful remnant of America’s imperialist past from our body of constitutional law. Yet the most the court could muster was an acknowledgment that the Insular Cases are “much criticized” and that “whatever their continued validity,” the justices “will not extend them in these cases.”

It’s easy to see why the justices would distance themselves from the Insular Cases. Issued at the height of America’s imperialist expansion in the early 20th century, these controversial decisions broke from prior precedent to create the doctrine of territorial incorporation, allowing Congress to govern residents of so-called unincorporated territories outside the usual constitutional limitations on its power. The expressly stated justification for this discriminatory doctrine was the racist belief that these newly acquired overseas territories were populated by “alien races” and “savages” who could not comprehend American “Anglo-Saxon principles.”

And in conclusion:

The Supreme Court missed a ripe opportunity to turn the page on the Insular Cases and extend the principle of equal justice under law to residents of U.S. territories. It is long past time to recognize that the Constitution protects all Americans equally, wherever they live.

Agreed.  The Insular Cases are an abomination.  But it should be emphasized that they are a nonoriginalist abomination.  The "territorial incorporation" doctrine has no basis in the Constitution's text or any context or pre- or early post-ratification history.  As originalists Gary Lawson and Guy Seidman put it in their great book Constitution of Empire (pp. 196-197):

[T]here is nothing in the Constitution that even intimates that express constitutional limitations on national power apply differently to different territories once that territory is properly acquired.  Nor is there anything in the Constitution that marks out certain categories of rights as more or less “fundamental” than others…. The doctrine of “territorial incorporation” that emerged from the Insular Cases is transparently an invention designed to facilitate the felt need of a particular moment in American history.

A leading (and to my mind the strongest) argument against originalism in constitutional adjudication is that it can lead to bad outcomes (not always, but perhaps in enough cases to be worrisome).  But as the Insular Cases illustrate, nonoriginalism also can lead to bad outcomes.  Freeing judges from original meaning to follow their policy-driven intuitions is no guarantee of good (or even consistently better) outcomes.

As to the future of the Insular Cases, I hope litigants will continue to press the Court to re-examine the territorial incorporation doctrine.  It seems like something originalists and nonoriginalists should be able to agree on.

RELATED:  On originalism in the Aurelius case specifically, see here from Chris Green.


Does the President Have Power to Combat "Domestic Violence"?
Michael Ramsey

A number of commentators have recently argued that the President should (or at least can) use the U.S. military to suppress the ongoing riots and disorder in major cities.  (For example, Andrew McCarthy at NRO: The President Has the Constitutional Power to Restore Order. He Must Act. Also here from Marc Thiessen.)

I think, though, as a constitutional matter this authority is somewhat limited.  Assume the President has statutory approval to act from a combination of the Insurrection Act and the Posse Comitatus Act (as McCarthy argues in the essay linked above).  As a constitutional matter the President surely has authority -- especially if authorized by Congress but probably even if not -- to use the military to enforce federal law and protect federal institutions.  (President Buchanan was wrong about his lack of authority in the run-up to the Civil War.)  But does the President have power to suppress violations of state law arising from disorder, such as looting and vandalism?

The key constitutional provision is Article IV, Section 4:  "The United States ... shall protect each [State] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence."  One could read this language only as a duty of the United States (when requested by a state, the United States must protect against domestic violence), saying nothing about whether the United States can otherwise choose to protect a state even without a request.  But I think it is better read as both a duty and a limit.  The negative implication is that the United States can act against domestic violence if but only if a state (through its legislature or executive, as appropriate) asks for help.

The clause's relatively high hurdle for state requests suggests that the clause is a limit as well as a duty.  The point of requiring an application from the state legislature (in the ordinary case) or the state executive is to protect the state from premature (or pretextual) federal intervention.  That is why this requirement applies only to federal interventions against domestic violence and not to federal interventions against invasions.  In the case of invasion, it's clear that the federal government should act.  But states may well prefer to handle domestic violence on their own rather than accept federal intervention, and the clause makes clear that this choice is for the state -- ordinarily through its legislature -- to make.

Admittedly I haven't researched founding-era materials to confirm this reading, and no doubt there are historical instances that don't conform to it, but it appears to be the best reading from the text alone.

Applied to the current situation, I think the President -- even assuming congressional authorization -- can use federal power to enforce federal law and protect federal institutions but cannot use federal power in general to suppress domestic violence unless requested by individual states in accordance with Article IV, Section 4.


Financial Oversight and Management Board v. Noel Canning
Chris Green

Justice Breyer’s opinion yesterday for the Court in Financial Oversight and Management Board v. Aurelius Investment, finding that certain bankruptcy-related officers in Puerto Rico are not “officers of the United States” under the Appointments Clause, made a few comments about the interpretive relevance of subsequent practice that strike a much more originalist tone than Breyer’s comments on the same issue for the Court six years ago in NLRB v. Noel Canning.

One big issue for originalist use of subsequent practice is whether it is epistemic (i.e., shedding light on the meaning expressed by the text in its original context) or instead constitutive (i.e., filling in a gap that was left because that original meaning was incomplete). An old joke about three umpires illustrates the difference. The first says “There’s balls and strikes, and I call them as I see them.” The second says “No—there’s balls and strikes, and I call them as they are.” The third says, “No, you’re both wrong. There’s balls and strikes, but they aren’t anything until I call them!”

In a constitutional setting, the first umpire’s attitude, rather than the second or third, is what most originalists want out of officeholders after the Constitution is adopted. Officeholders should do their best, though their decisions neither constitute the constitutional subject matter—the Constitution—nor do they capture it infallibly.

The recess-appointments-clause case from 2014, Noel Canning, though, included some comments on subsequent practice that sounded a bit like the approach of the third umpire: “[T]his Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era.” It is much easier to see the interpretive relevance of practices that began in the 1820s if those practices are meant to fill in gaps, constitutively, rather than shed light, epistemically, on the meaning expressed in the original context. Preferring William Wirt in 1823 to Edmund Randolph in 1791 doesn’t make a lot of sense if we are looking for reliable early observers of the meaning conveyed by the text in its original context. Only if we are looking for reliance interests instead of reliable guides might the 1820s trump the 1790s.

Breyer’s opinion yesterday talked again about subsequent practice. His language at page 11, though, was more encouragingly epistemic: “Like Justice Thomas, we think the practice of the First Congress is strong evidence of the original meaning of the Constitution. We find this subsequent history similarly illuminates the text’s meaning.” At page 21 he repeated that the Court looked to find “the test established by the Constitution’s text, illuminated by historical practice.” To follow such a test was to be “more faithful to the Clause’s original meaning.”

It is encouraging to see seven justices—not even including Justice Thomas!—take the “original meaning of the Constitution” as their touchstone for interpretation. The notions of “evidence” and “illumination” likewise give subsequent practice a refreshingly epistemic subordinate role. The FOMB Court takes subsequent history as a guide to original meaning, not as an independent truthmaker for constitutional requirements.

Lawrence Solum on Interpretation and Construction
Michael Ramsey

At Legal Theory Blog, Lawrence Solum has an updated entry in the Legal Theory Lexicon: Interpretation and Construction.  It begins:

Every law student learns that the relationship of a legal text to the resolution of a particular case can be complex.  What does the text mean?  How does that meaning translate into legal doctrine?  And how does the doctrine apply in the context of the facts of the case?  One way to think more clearly about this process is to distinguish between interpretation and construction.  We can roughly define these two activities as follows:

  • Interpretation: The activity of discerning the linguistic meaning in context (or communicative content) of a legal text.
  • Construction: The activity of determining the legal effect (or legal content) of a legal text.

Those definitions sound pretty technical, but I hope you are starting to get the idea.  We interpret the meaning of a text, and then we construct legal rules to help us apply the text to concrete fact situations.

And on the relationship between originalism and the interpretation/construction distinction:

History of the Interpretation-Construction Distinction

My impression is that many legal scholars believe that the interpretation-construction distinction was introduced by Keith Whittington and popularized by Randy Barnett as as part of the emergence of the "new originalism" in the late 1990s.  The distinction did play an important role in the emergence of one strand of the new originalism--more on that in a moment.  But the distinction is an old one in American legal theory, going back to the first half of the Nineteenth Century in the work of Franz Lieber and playing an important role in the work of Arthur Corbin in the Twentieth Century.  Greg Klass has done important work on the history--some of which is linked to below.

The Interpretation-Construction Distinction and the New Originalism 

One especially important application of the interpretation-construction distinction occurs in the context of debates over the so-called "New Originalism."  One way in which the "New Originalism" may be new is that it embraces the interpretation-construction distinction.  (This is especially clear in the work of Keith Whittington and Randy Barnett.)  The "Old Originalism" focused on the original intentions of the framers or ratifiers and was offered as a theory of constitutional interpretation.  Old Originalists seemed to believe that the original intentions of the framers fully determined the translation of the constitutional text into the correct set of legal rules: interpretation could do all the work.  New Originalists deny that this is true.  They argue that the linguistic meaning of the Constitution is its original public meaning, but acknowledge that the original meaning runs out when the semantic content of the Constitution is vague: once interpretation makes its exit, construction enters the scene. 

Thus, the interpretation-construction distinction opens the door for a partial reconciliation of originalism with living constitutionalism: the Constitution can live in the "construction zone" where the linguistic meaning of the Constitution underdetermines results.  We might call the view that original meaning and a living constitutionalism are consistent "compatibilism"--the case for this view has been made by Jack Balkin.

I've raised this objection before in the context of discussing New Originalism, but here it is again:  I think the account above doesn't adequately distinguish between two different divides in originalist theory.  One is the divide between original intent originalism (the "Old Originalism" associated with Robert Bork and modern scholars such as Larry Alexander and Richard Kay) and original public meaning originalism associated with Justice Scalia (and modern scholars such as Gary Lawson and Michael Paulsen).  The other is the divide between those who embrace a broad "construction zone" where the interpretation/construction distinction "opens the door for a partial reconciliation of originalism with living constitutionalism" (the "New Originalism" described in the excerpt) and those who do not.

It's important to keep these divides separate because a number of modern originalist scholars are neither "Old Originalists" (in the sense of embracing original intent) nor "New Originalists" (in the sense of embracing a broad "construction zone").  I call them "Scalian originalists" because Scalia was a pioneer of this position -- he adopted original public meaning instead of original intent as the touchstone of his inquiry (thus he was not an "Old Originalist") but he rejected the idea of construction in the sense of the excerpt above.

Mike Rappaport adds: I agree with the criticism that Mike Ramsey makes here.  I have written about this previously where I discuss the problem of the name of the New Originalism and of treating New Originalists as the only advocates of original public meaning.   


Charles Barzun on Originalism as Our Law
Michael Ramsey

At Balkinization, Charles Barzum (Virginia), guest-blogging:  An Unoriginal Joke, Part I.  He begins:

Sometimes parody reveals more truth than even the parodist intended.  Last week I tweeted what was meant as an offhand joke about originalism but which was taken seriously by some.  But those who did take it seriously sparked a debate that ended up being fruitful in a way I had not remotely foreseen.  Eventually I’d like to say more about that, but first I want to state more explicitly the point I was trying to convey.
The joke was this: I wrote, “I have a new theory of constitutional law. I call it ‘living constitutionalism.’ It claims that the Const. has been interpreted by the Court in different ways at different times.  It is thus a ‘living’ doc. Living Constitutionalism is our law and judges take an oath to support it.”  I then spelled out the syllogistic argument that proved we have a living constitution:
P1: Texts whose interpretations change over time are “living.”
P2: The Constitution is a text whose interpretation has changed over time.
C: Therefore, the Constitution is a living text.
The joke probably only made sense to those who have been following recent debates about constitutional originalism.  In case you have not been following them so closely, here’s a quick synopsis of the dialectic, which conveys something of its frustratingly shape-shifting quality:
Originalist: This just in: It turns out originalism is our law.
Critic: Huh? No, it’s not — it’s rejected by a majority of the Supreme Court and most federal judges!
Originalist: No, I don’t mean Bork’s or Scalia’s kind of originalism.  I just mean that we think our Constitution began at the founding and there have been no revolutions since.  Like in the way that Anthony Kennedy is an originalist.
Critic: Oh, okay, I guess, but then… what’s the point, exactly?  Besides, even that claim seems to require defending a theory of law.
Originalist: No worries, we’ve got that.  See Hart, etc.  Also, the judicial oath proves that originalism is true.
Critic: Wait, what?
Originalist: Well, judges swear to uphold “the constitution,” right?  And that’s the same Constitution President Washington swore to uphold, no?  So when judges swear to support and defend the Constitution, that is the same constitution as “this constitution” that Article VI makes the supreme law of the land. Therefore, originalism is true.
Critic: So judges who aren’t originalists are breaching their oaths and are thus impeachable?! That’s crazy! And question-begging and circular.  At the very least, it depends on what you mean by “same.”
Originalist: No, not impeachable, just mistaken is all.  To understand, you really oughta bone up on your philosophy of language, from Frege to David Chalmers’ latest work.  Anyway, all I’m saying is that IF originalism is our law, then judges have a duty to uphold it.
Critic: Oh, okay.  But then if living constitutionalism is our law, then judges have a duty to uphold a living constitution.  But that’s the whole issue in dispute.  So, to repeat, what’s the point of all this again?
And from later on:
I think originalists genuinely believe that it matters that even liberal judges and scholars pay lip service to the framers and strive, whenever possible, to render their constitutional views consistent with original understandings.  See, e.g., virtually every liberal law professor’s constitutional argument for impeaching Trump.  The originalists think it matters that there is an “official story” of our constitutional order that traces back to the founding and that judges promise to take that story seriously when they decide cases.
If that is right, then my question is not about the propositions these facts are marshalled to establish, but rather the perceived stakes involved in doing so.  Why does it matter that these features are part of our constitutional practice?  The answer cannot simply be that they reveal originalism to be true, because there are lots of truths that don’t generate articles, conferences, blog posts and op-eds devoted to establishing them.  Is it because the ideal of the rule of law requires a hierarchal structure of authoritative rules, without which there would be chaos?  Is it because the founders were particularly wise or virtuous and so deserving of deference, even if only superficially?  Is it because a constitutional order requires, for its survival, some consensus, however thin, about such origin stories?  Something else entirely?
I think what is frustrating to many observers of, and participants in, recent debates in constitutional theory is the sense that the answers to these questions (whatever they may be) are doing the real work in the arguments for originalism.  Yet they are rarely articulated.  They underlie the choice of premises but make no appearance in the syllogisms.  Maybe if they were brought out and acknowledged, the debate could be more meaningfully advanced.