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29 posts from July 2020


Judge Patrick Bumatay on the State Secrets Doctrine
Michael Ramsey

In a recent case, Fagaza v. Walls, Judge Patrick Bumatay (Ninth Circuit) (writing for 10 judges dissenting from denial of rehearing en banc), discusses the historical foundations of the state secrets doctrine.  An excerpt (footnotes omitted): 

Article II of the Constitution commands that “[t]he executive Power shall be vested in a President of the United States of America.” U.S. Const. art. II, § 1. And the President is also designated as the “Commander in Chief of the Army and Navy of the United States.” U.S. Const. art. II, § 2. By these terms, the Constitution was originally understood to vest the President with broad authority to protect our national security. See Hamdi v. Rumsfeld,  42 U.S. 507, 580 (2004) (Thomas, J., dissenting) (“The Founders intended that the President have primary responsibility—along with the necessary power—to protect the national security and to conduct the Nation’s foreign relations.”). As Hamilton observed, a single Executive could better act with “[d]ecision, activity, secrecy, and d[i]spatch” as would be required to respond to the national security crises of the day. The Federalist No. 70 (Alexander Hamilton).

Secrecy, at least at times, is a necessary concomitant of the executive power and command of the Nation’s military. As commander of the Continental Army, George Washington explained to Patrick Henry that “naturally . . . there are some Secrets, on the keeping of which so, depends, oftentimes, the salvation of an Army: Secrets which cannot, at least ought not to, be [e]ntrusted to paper; nay, which none but the Commander in Chief at the time, should be acquainted with.”

Given the Executive’s inherent need for secrecy, it comes as no surprise that early presidents regularly asserted a privilege over the disclosure of sensitive information. In 1792, when President Washington found himself faced with the first-ever congressional request for presidential materials, he recognized an executive privilege to avoid disclosure of secret material. See Abraham D. Sofaer, Executive Power and the Control of Information: Practice Under the Framers, 1977 Duke L.J. 1, 5–6. Washington’s Cabinet, including Hamilton and Jefferson, agreed “that the executive ought to communicate such papers as the public good would permit, and ought to refuse those, the disclosure of which would injure the public.” Id. at 6 (quoting The Complete Jefferson 1222 (S. Padover ed. 1943)); see also Mark J. Rozell, Restoring Balance to the Debate over Executive Privilege: AResponse to Berger, 8 Wm. & Mary Bill Rts. J. 541, 556 (2000).

President Jefferson, even as a prominent critic of an overly strong executive branch, held the same view on the need for secrecy. As he put it in 1807, “[a]ll nations have found it necessary, that for the advantageous conduct of their affairs, some of these proceedings, at least, should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interests will permit publication.” Similarly, Jefferson wrote to the prosecutor of the Aaron Burr case to explain that it was “the necessary right of the President . . . to decide, independently of all other authority, what papers, coming to him as President, the public interests permit to be communicated, & to whom.”

The issue in the case isn't the existence of the state secrets doctrine, but rather the extent to which it is qualified by the Foreign Intelligence Surveillance Act (FISA); the dissent stresses the doctrine's strong constitutional foundations as a ground for reading the FISA provisions narrowly.

(Via Ed Whelan at NRO Bench Memos.)


Nelson Lund: Living Textualism in Bostock v. Clayton County
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted Unleashed and Unbound: Living Textualism in Bostock v. Clayton County (Federalist Society Review, forthcoming 2020) (20 pages) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, Georgia the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits—and has always prohibited—discrimination by employers on the basis of homosexuality or of what the Court called transgender status. How so? The statute forbids employers to intentionally discriminate against any individual “because of such individual’s . . . sex.” The Court asserted that discrimination because of homosexuality or transgenderism violates the unambiguous text of the statute.

This result in this case decision would not have been much of surprise in the period during which Justice Anthony Kennedy held the controlling vote on issues dealing with sex, and especially with homosexuality. But the 6-3 majority opinion in Bostock was written by Justice Neil Gorsuch and joined by Chief Justice John Roberts. The majority opinion has virtually no policy analysis or political rhetoric, and it lacks the kind of inflated pseudo-philosophic pontification that Kennedy favored. Instead, the Bostock opinion presents itself as nothing more than a straightforward application of the legally binding text of the statute. Justice Gorsuch even goes out of his way to cast himself as the legitimate intellectual successor to the man whom he literally succeeded: the high priest of statutory textualism, Justice Antonin Scalia.

Leaving others to speculate about judicial motives, I propose that Bostock is an extension of a theory commonly called “living originalism.” During the last decade, this approach to constitutional interpretation has been gaining steam in the legal academy. Bostock has now effectively extended that approach beyond the academy, beyond the field of constitutional interpretation, and even beyond the limits recognized by its academic adherents.

Bostock is a demonstrably outlandish judicial performance. Outlandish though it is, Bostock might be used by the Court to correct one of its most egregiously mistaken lines of case law. Although Title VII unambiguously forbids employers to discriminate on the basis of race or sex, the Court has upheld quotas and preferences explicitly based on the race or sex of people in favored groups. In 1991, Congress amended Title VII by adding a new provision whose text unambiguously overruled the decisions that upheld these preferences. Even without using the peculiar new form of textualism deployed in Bostock, the Supreme Court should have recognized that the 1991 amendment deprived these precedents of any binding force they may once have had. The Court has not done so, but Bostock now imperatively requires the Court to declare that Title VII forbids, and has always forbidden, these illegal employment practices.


Ian Huyett: How to Overturn Employment Division v. Smith
Michael Ramsey

Ian Huyett (J.D. Washington and Lee University '18) has posted How to Overturn Employment Division v. Smith: A Historical Approach (Regent University Law Review, Vol. 32, 2020) (49 pages) on SSRN.  Here is the abstract:

Over the last decade, justices on both sides of the Roberts Court have demonstrated a growing willingness to give the Free Exercise Clause substantive power: a trend that stands in stark contrast with the Rehnquist Court’s decision in Employment Division v. Smith. The Court’s references to Smith have also become visibly — and fittingly — awkward and halting. In this article, I argue that the time has come to push for an explicit reversal of Smith, and that such a decision would not only be joined by Chief Justice Roberts, but likely by Justice Kagan as well. Exploring the history of the Free Exercise Clause, I argue that Smith contradicted the Clause’s original intent, and that the nineteenth-century decisions on which Smith relied were little more than brazen codifications of anti-Mormon bigotry. I conclude that Justice Scalia’s majority opinion in Smith fails every metric of sound jurisprudence, and that a bipartisan coalition of justices can be persuaded to discard it as an aberration.

(Via Larry Solum at Legal Theory Blog, who comments: "A somewhat dated understanding of originalism.")


Carl Esbeck on the Original Meaning of the Establishment Clause
Michael Ramsey

Carl H. Esbeck (University of Missouri School of Law) has posted The Establishment Clause: What the Text and Record in the First Federal Congress Can Tell Us About Original Meaning (33 pages) on SSRN.  Here is the abstract:

Modern times in church-state relations began in 1947 with the Supreme Court’s decision in Everson v. Board of Education. The justices in both the majority and dissent said they were interpreting the Establishment Clause based on the intent of the founding generation. However, rather than looking to Congress’s lawmaking in the summer of 1789 that led to the First Amendment, the justices relied on the Virginia disestablishment from four years prior, as well as the efforts of just two statesmen, James Madison and Thomas Jefferson.

For the next half century, the High Court’s search was for events and prominent actors reflecting original intent. This is now considered Old Originalism. Its defect is that lawmaking is a collective task, the work of many individuals with multiple intents. Jurisprudential conservatives have urged an interpretation of the U.S. Constitution that is faithful to its time of inception. They increasingly look to New Originalism. This is an interpretive principle that adheres to the ordinary meaning of the text when adopted. Originalism—first old and now new—has especially been a long-term project of religious traditionalists when it comes to the Establishment Clause.

Seemingly Everson and its progeny were asking the wrong question (Old Originalism) about the wrong event (Virginia). The First Amendment is from a different time (1789-90) and lawmaking body (Congress and ratifying states). James Madison is the one common denominator, but his purposes and power to successfully shape the law emerging from these events were altogether different in the two instances. While New Originalism looks at a narrower slice of the historical record, it still requires knowledge of context to fully understand what Congress was trying to do in settling on a particular text.

As the First Congress assembled in New York City in April 1789, Madison still did not concede that a bill of rights was needed to thwart abuses by the new federal government. Yet he saw its usefulness “to limit and qualify the powers of the Government, by excepting out of the grant of power those cases in which the Government ought not to act, or to act only in a particular mode.” From the start, then, Congress’s task was made easier because the purpose was not to formulate a comprehensive list of unalienable or natural rights. The effort was the far more modest, and hence achievable, task of agreeing on what powers were not vested in the new government by the 1787 Constitution. Thus, the amendments would be stating negatives, that is, identifying what the federal government had no power to do.

With the question thus framed, this article explores what New Originalism yields concerning the original meaning of the words “respecting an establishment of religion.” It turns out the text tells us a fair amount, including what these words did not mean.


William Carter: The Second Founding and the First Amendment
Michael Ramsey

William M. Carter, Jr. (University of Pittsburgh - School of Law) has posted The Second Founding and the First Amendment (66 pages) on SSRN.  Here is the abstract:

Constitutional doctrine generally proceeds from the premise that the original intent and public understanding of pre-Civil War constitutional provisions carries forward unchanged from the colonial Founding era. This premise is flawed because it ignores the Nation’s Second Founding: i.e., the constitutional moment culminating in the Thirteenth, Fourteenth, and Fifteenth Amendments and the civil rights statutes enacted pursuant thereto. The Second Founding, in addition to providing specific new individual rights and federal powers, also represented a fundamental shift in our constitutional order. The Second Founding’s constitutional regime provided that the underlying systemic rules and norms of the First Founding’s Constitution of Enslavement would be modified as necessary in order to give rise to a “new birth of freedom.” Contemporary constitutional doctrine, however, has rarely grappled with the question of whether and to what extent the Second Founding’s Framers and general public might have had a different or more nuanced understanding from their First Founding counterparts of prior constitutional provisions.

The Supreme Court’s approach to First Amendment interpretation largely ignores the Second Founding. The Court’s cases generally view the colonial Founding era as the sole source of evidence for ascertaining the original intent and public understanding of the Constitution’s guarantee of freedom of speech. This Article, by contrast, contends that the intent and understandings of the Second Founding provide an additional and under-explored source of constitutional meaning and therefore examines freedom of speech through the lens of slavery, abolition, and Reconstruction.

This Article breaks new ground in legal scholarship by extensively reviewing slave narratives that illuminate the experiences and perspectives of enslaved persons regarding freedom of speech. This Article contends that by virtue of the Second Founding, enslaved persons’ views and experiences regarding freedom of speech should directly inform the meaning of the First Amendment. Accordingly, this Article makes a novel contribution to the literature regarding the Second Founding by centering enslaved persons’ voices as constitutional actors whose views on freedom of speech matter.


Josh Blackman & Seth Barrett Tillman on Impeaching Territorial Officers
Michael Ramsey

At Balkinization, Josh Blackman & Seth Barrett Tillman: Justice Breyer made it impossible for Congress to impeach territorial officers for accepting bribes.  From the introduction:

Recently, the Supreme Court decided Financial Oversight and Management Bd. for Puerto Rico v. Aurelius Investment, LLC. (We wrote about it here.) This case considered the status of members of the Financial Oversight and Management Board for Puerto Rico.
The board members are appointed by the President without the Senate’s advice and consent. These positions were created by the Puerto Rico Oversight, Management, and Economic Stability Act of 2016 (PROMESA). Justice Breyer’s majority opinion found that the board members are not principal “officers of the United States.” (The parties did not contend the board members might be inferior “officers of the United States.”) Rather, the Court held, they are “local officers that Congress vests with primarily local duties.” Thus, their appointments are not subject to the strictures of the Appointments Clause: that is, appointment by the President, with advice-and-consent by the Senate.
However, the Court did not define how the PROMESA board members should be characterized. Justice Breyer recognized that if the PROMESA board members “are not officers of the United States,” they must be “some other type of officer,” and “the Appointments Clause says nothing about them.” But what are they? Justice Breyer observed that “[l]ongstanding practice indicates that a federal law’s creation of an office in this context does not automatically make its holder an ‘Officer of the United States.’” That is, a federal statute can create another type of federal officer—that is, one who is not an “officer of the United States,” as that phrase is used in the Appointments Clause.
The problem is...
The PROMESA case also has unanticipated consequences. If territorial officers with only local duties are not “officers of the United States,” then they are not subject to the Impeachment Clause. That provision extends to the “President, Vice President and all Civil Officers of the United States.” Thus, Congress would be helpless to impeach, try, remove, and disqualify a territorial officer—no matter how egregious the conduct. Consider an example involving [Arthur] St. Clair [Governor of the Northwest Territories]. Trump v. Mazars recounted that in 1792, he led a “campaign against the Indians in the Northwest Territory, which had concluded in an utter rout of federal forces when they were caught by surprise near the present-day border between Ohio and Indiana.” Under the PROMESA Court’s reading of the Appointments Clause, Congress would have been unable to remove St. Clair through impeachment processes. By contrast, we can point to a 1796 opinion of the Attorney General, Charles Lee, advising the House of Representatives that it may proceed against a territorial judge by impeachment.
Justice Breyer’s majority opinion has other consequences. If territorial officers with primarily local duties are not “officers of the United States,” regardless of how they are appointed, then they may also not hold “office[s] . . . under the United States.” Under the prevailing readings of the Constitution, there is no meaningful difference between the Constitution’s “office”- and “officer”-language. The two phrases—“officers of the United States” and “office under the United States”—are seen as co-extensive. (We do not subscribe to that modern atextual reading of the Constitution.) If these conclusions are accurate, then territorial officers would not be subject to the Foreign Emoluments Clause. As a result, St. Clair and other frontier officers could have freely accepted foreign state diplomatic gifts or, even, bribes from England, France, and Spain, without seeking congressional consent. Congressional consent would not be required for diplomatic gifts, and impeachment would not extend to outright bribes. Moreover, such territorial officers would not be bound by two other provisions that use the phrase “office . . . under the United States”: the Elector Incompatibility Clause and the Impeachment Disqualification Clause.


In the McGirt Case the Courts Should Have Held the Major Crimes Act Unconstitutional as Applied
Andrew Hyman

Earlier this month, the U.S. Supreme Court decided the case of McGirt v. Oklahoma.  SCOTUSBlog has background materials here.

By a 5-4 vote, the Court decided that almost half of Oklahoma, including much of the city of Tulsa, is still a "reservation" of the Creek Tribe, even though everyone agrees that the state and federal governments have not treated it as such for over a hundred years.  Several more tribes may now get similar rulings, covering even more land in Oklahoma.  The main impact may well not be as huge as some media outlets suggest; prosecution and trial of major crimes involving Native Americans may shift from the State government to the Federal government, plus a few other changes.  However, it seems inevitable that Congress will have to act in some way, because the Court’s opinion by Justice Gorsuch suggests that no government at all has legitimate authority to prosecute various minor crimes involving Native Americans, but it is unknown whether Congress will be inclined to shift jurisdiction over major crimes back to the State of Oklahoma.   

I think McGirt was probably wrongly decided, although it’s not as clear a legal mistake as the recent Bostock decision (about which I briefly commented here).  Whether it was decided rightly or wrongly, McGirt  has much interesting information about how the majority and the dissent regard (or disregard) the original meaning of laws.

In McGirt, Justice Gorsuch spoke for himself, Breyer, Kagan, Sotomayor, and Ginsburg.  Chief Justice Roberts wrote the main dissent.  The case was about Jimcy McGirt, an enrolled member of the Seminole Nation who was convicted in Oklahoma state court of raping his wife’s four-year-old granddaughter.  Everyone agrees that the crime happened on land that (at one time at least) has been part of a Creek Reservation.  And everyone agrees that Congress has exercised its power to reduce or diminish that Creek Reservation from what it once was.  Moreover, everyone agrees that a pertinent federal statute is the Major Crimes Act (MCA).  That statute, which has been amended since it was first written in 1885, can be found at 18 USC 1153.  The statute uses the term "Indian Country" which includes various categories described at 18 USC 1151, including Native American reservations.  As far as I can tell, the word “reservation” maintains the same meaning now as it had in the original text of the MCA (p. 385) (emphasis added):

Indians committing [certain major crimes] against the person or property of another Indian or other person within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties as are all other persons committing any of the above crimes within the exclusive jurisdiction of the United States.

The constitutionality of the MCA was upheld in U.S. v. Kagama, 118 U.S. 375 (1886).  Justice Samuel Miller wrote the unanimous opinion in that 1886 case, and he said that the MCA was valid assuming the reservation had certain characteristics.  Regardless of whether the area at issue in McGirt is a “reservation” within the original meaning of the MCA, the MCA is inapplicable to that area if it is not enough of a reservation to meet the criteria set forth in Kagama.  Here’s what Miller wrote:

It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power.

It seems to me that the MCA is unconstitutional as applied, if a reservation does not meet these conditions described in 1886 by a unanimous U.S. Supreme Court.  It’s true that the Kagama opinion is dated a year after the MCA, and therefore could not have influenced the Congress and the public who allowed the MCA to become law.  But I think the Kagama Court was correct to impose certain conditions upon the reservations to which the MCA can apply within the boundaries of a state, the older sources cited by Justice Miller are compelling, and I don’t think those conditions are satisfied by the Creek Reservation, whether it still exists as a "reservation" or not.  So, it was disappointing that the Court did not mention Kagama in McGirt, nor whether the MCA might be unconstitutional as applied, but perhaps those issues were not properly raised by counsel.

MICHAEL RAMSEY ADDS:  I'm not sure what I think of McGirt or the Major Crimes Act, but to be fully originalist about the matter I think one would have to say that U.S. v. Kagama is wrong (at least on its reasoning).  As described above, the question in Kagama was whether Congress had constitutional power to criminalize wrongs between members of tribes.  In addition to the paragraph quoted above, the core of the Court's analysis in finding the power was this:

The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theatre of its exercise is within the geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes.

Wrong, wrong wrong.  Power does not exist in the "General Government" (i.e., Congress) because it is "necessary" or it "must" exist.  By the Tenth Amendment, a power exists in the General Government if it is delegated to the General Government by the Constitution; otherwise is it reserved to the states or the people.  Kagama is one of a series of cases in the late nineteenth century in which the Court disregarded the Tenth Amendment and found congressional power over various matters simply because those powers were properly exercised by sovereign nations and the national government was (it said) the logical place for them.  And most of these cases, like Kagama, asserted without foundation that the states could not exercise the powers in question.  But typically states could exercise the powers -- for example, in Kagama, there wasn't any practical reason states couldn't regulate crimes among tribal members within state boundaries, although there may have been reasons this would have been a bad idea.

That doesn't mean the Major Crimes Act is unconstitutional as a general matter.  Congress has power to implement treaties (including treaties with the tribes) and to make rules respecting the territory and property of the United States (art. IV).  But as an original matter an application of the Major Crimes Act or other aspects of federal law respecting the tribes needs to be linked to these constitutional powers, not merely to the Court's supposed concern over the plight of the tribes and the needs of sovereignty.

ANDREW HYMAN REPLIES:  The quote I provided above from Kagama does reference the treaty power, saying that from “treaties in which [protection] has been promised, there arises the duty of protection, and with it the power.”  Thus, the Court in Kagama analyzed whether the Native Americans in question really needed the protection of the Major Crimes Act, and Justice Miller explained why they did in that particular case.  If one accepts that the Treaty Clause allows incursions into power otherwise reserved to the states (perhaps based upon a legitimate international concern), then Kagama seems like a valid implementation of that view.   Either way, the result in McGirt was likely wrong, because it’s inconsistent with the rule in Kagama, or because the Treaty Clause does not allow incursions into Tenth Amendment power.  My understanding is that everyone agrees the land at issue in McGirt is not the territory or property of the United States (the MCA says it’s not “within the exclusive jurisdiction of the United States”).


Josh Blackman: Presidential Subpoenas during the Burr Trials
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) has posted Presidential Subpoenas during the Burr Trials (17 pages) on SSRN.  Here is the abstract: 

Between March and October of 1807, Aaron Burr stood for two treason trials arising from the same set of facts: the first, for a felony charge, and the second, for a misdemeanor charge. Chief Justice John Marshall presided over the proceedings in the Circuit Court for Virginia in Richmond. During this period, Marshall issued seventeen written opinions, and delivered several shorter decisions from the bench, that spanned over two-hundred pages in the reporter. In the end, based on Marshall’s narrow construction of the crimes of treason, the jury acquitted Burr of both the felony and the misdemeanor charges. Marshall’s rulings, however, were not limited to technical aspects of criminal law. In both trials, Aaron Burr asked the court to issue a subpoena duces tecum to President Jefferson. Such a subpoena would have required the witness to appear in court, and bring a specific document. Specifically, Burr wanted Jefferson to produce a letter authored by General Wilkinson, dated October 21, 1806. Burr insisted that this transmission to the President was material to his defense. Moreover, the Defendant demanded that Jefferson produce the original copy of Wilkinson’s letter. The United States Attorney, George Hay, would only offer to provide a redacted copy of the letter, with certain portions excluded.

As the deliberations proceeded, Hay would frequently write to the President, who travelled between the White House and Monticello. Jefferson, who took a keen interest in the case, would usually write back immediately. The correspondences between Jefferson and Hay outside of court can shed light on the interactions between Hay and Marshall in court. That is, the government’s positions were based on direct instructions from the President himself. In the felony trial, Marshall ordered that Jefferson was required to submit the original copy of the letter, without redactions. Jefferson did not comply with this order. In the misdemeanor trial, Jefferson would provide a redacted copy of the letter.

Because of the lengthy nature of the proceedings—in which Marshall and Jefferson took different positions at different junctures—it is difficult to draw too many broad conclusions from the prosecution as a whole. This essay will walk through each phase of the proceedings, with an eye towards understanding the limits on presidential subpoenas.


Eric Segall on Espinosa v. Montana Department of Revenue
Michael Ramsey

At Dorf on Law, Eric Segall: The Roberts Court: We are All Living Constitutionalists Now.  From the core of the argument:

Since Justice Gorsuch was promoted to his current position, he, Thomas, and Kavanaugh have teamed up on numerous important occasions to strike down laws in what can only be fairly described as living constitutionalist decisions. They voted to overturn state laws requiring public-sector union employees to pay partial union dues; a state law requiring certain abortion information to be posted at so-called pregnancy crisis centers; a state law prohibiting wearing political apparel at voting places; and a Colorado anti-discrimination law as applied to a baker who refused to make a cake for a same-sex wedding. As I've argued before, none of these cases can be justified by reference to originalist materials. They are all based on the Justices' personal values and politics. The decisions in these cases might be right or wrong, good or bad, but they are not originalist.

Last week the three were at it again in what is one of the most important cases this term. In Espinoza v. Montana  Department of Revenuethe five conservatives (over the dissent of the four liberals) reversed a Montana Supreme Court decision that held it would violate the state constitution for taxpayer dollars generated by a tax credit to be given to religious schools. ...

Chief Justice Roberts' majority opinion in Espinoza barely mentions originalist sources. Most of the legalisms in the opinion were supported by citations to Trinity Lutheran v. Comera 2017 decision in which the Court held that Missouri could not bar religious schools from participating in a program that reimbursed schools for repaving playgrounds with recycled tires. Chief Justice Roberts wrote the main opinion in that case, which also failed to to cite originalist materials, so Espinoza's piggy-backing on Trinity Lutheran cannot provide the missing originalist link.

The lack of an originalist basis for the Court's ruling that states cannot disqualify religious schools from general aid programs can be seen in Roberts' lengthy attempt to distinguish Locke on the basis that there had been a “historic and substantial state interest in not funding the training of clergy." Roberts said there was no similar tradition when it came to the funding of religious schools because, and this is the only originalism in the case, in "the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones." But the issue in Espinoza was not whether Montana could support religious schools but whether it had a constitutional obligation to give religious schools the same aid it gives non-religious schools. For the proposition that Montana had no choice in the matter, Roberts did not cite any originalist sources.

Unfortunately, I think this is mostly right about the majority opinion in Espinosa (and in Trinity Lutheran as well).  I would have liked to see a more originalist concurrence, at least, from one of the avowed originalists.  But don't know that that makes them living constitutionalists.  Perhaps they thought that the result was right on originalist grounds and that (as Justice Scalia often said), you can't write separately in every case.  It's not clear to me that the result in Espinosa is wrong on originalist grounds.  Just on the text, arguably you can't freely exercise your religion if the government puts you to the choice of giving up your religious affiliation or losing your government funding.  Perhaps that's not the way the text was understood at the time of enactment, but that would require some originalist evidence on the other side (and I take Roberts' point, discussed in the quote above, to be that there isn't any).


William Baude: Conservatives, Don’t Give Up on Your Principles or the Supreme Court

In the New York Times, William Baude: Conservatives, Don’t Give Up on Your Principles or the Supreme Court -- Some are turning away from a founding idea, originalism.  From the introduction:

For decades, originalists — many of them conservatives — have argued that courts should interpret the Constitution and other law in keeping with its original meaning. And their views have gained power. Both of President Trump’s appointments to the Supreme Court — Neil Gorsuch and Brett Kavanaugh — have described themselves as originalists, leading many to hope or fear that they would form a conservative majority with Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito.

But that same court has just issued a mixed buffet of decisions — with conservatives splitting on cases concerning gay rights, immigration, executive power, Native American tribes — leading many to accuse the justices of political maneuvering or faulty reasoning. Some have also questioned whether originalism, or a related theory called textualism, is outdated.

And from the conclusion:

These decisions show that while originalism had great force at the court, it is not a juggernaut. The justices disagree about how to interpret ambiguous provisions and about the role of precedent; originalists disagree among themselves about how to balance text and other context.

These disputes are healthy. Even if the court does not get every decision right (which it does not), it demonstrates a widespread commitment to the method of originalism, in which the meaning of the Constitution as enacted by the people is paramount and judges can interpret it but cannot alter it. Originalism is foundational to our law, even though the justices sometimes disagree in applying it and even though the role of precedent remains fraught.

Still, as originalism becomes more popular and sometimes delivers liberal outcomes, originalists may fracture among themselves. Some conservatives may turn against it altogether, following the lead of Professor Vermeule. It is reasonable for some conservatives to be tempted by this position. If what matters most to you are the results in specific cases, you may want non-originalist justices.

But one danger of results-oriented judging is that other people, including future conservative judges, may not share your moral convictions. Even politicizing the courts may not produce moral consensus. Originalism is a method of evaluation, not a party platform.

Originalism has had widespread support for a reason. It has the potential to transcend our moral disagreements. And that may be what we need most in the long run.

Agreed (at least as to the last part).  But originalism can't transcend our moral disagreements unless liberal Justices (sometimes) vote for conservative results on originalist grounds.  And if they won't, conservatives may (like Professor Vermeule) decide originalism is a bad deal.

Thanks to Michael Perry for the pointer.