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29 posts from July 2020

07/11/2020

Steven D. Smith on Bostock
Michael Ramsey

One more on Bostock v.Clayton County, from my USD colleague Steven D. Smith (at Law & Liberty): The Mindlessness of BostockFrom the introduction:

In Bostock v. Clayton County, as everyone by now knows, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating based on sexual orientation or transgender status. Dissenting, Justice Samuel Alito pointedly accused the Court of legislating.

Alito was too kind. The Court did not merely transfer the legislative power from Congress, where the Constitution places it, to the judiciary. Rather, the Court moved the legislative power beyond the realm of mindful decision-making altogether. If we assume that Justice Neil Gorsuch was sincere in what he wrote for the Court (and I do), our governing law becomes mindless in a quite literal sense.

Ironically, this descent into mindlessness is the consequence of a prima facie admirable but seriously misconceived commitment to rule of law—a misconception closely associated with the “textualism” advocated by conservative champions like Justice Antonin Scalia and followers like Justice Gorsuch. In that sense, Bostock might be taken as a sort of reductio ad absurdum of the textualism that many legal conservatives have ill-advisedly embraced for a generation or more.

And from later on:

As of last month, in short, Congress had been presented with the question, had thought about it—and had decided not to adopt any prohibition. So the prohibition recognized in Bostock surely did not come from any mindful deliberation and decision by Congress.

Does it then at least reflect mindful deliberation and a decision by the Justices on the basic question—namely, whether the law should prohibit sexual orientation discrimination? Again, cynics may suggest that this is what happened. But Justice Gorsuch rejects any such description. According to Gorsuch, he and his colleagues are not themselves deciding whether sexual orientation should be protected against discrimination. Not at all. They are merely saying what “the law” is.

Whether federal law should prohibit sexual orientation discrimination has been a much-debated issue in our society. Now we have such a prohibition. But not because Congress deliberated and then decided to adopt it. And not (at least according to Gorsuch) because the Justices deliberated and decided to adopt it. What we have, it seems, is a highly consequential and controversial prohibition that is not the expression of a mindful decision by anyone.

Andrew Koppelman has a response at Balikinzation: Bostock and mindlessness.

07/10/2020

Steven Heyman: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause
Michael Ramsey

Steven J. Heyman (Chicago-Kent College of Law) has posted Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause (University of Pennsylvania Journal of Constitutional Law, Vol 23, No. 1, forthcoming) (121 pages) on SSRN.  Here is the abstract:

One of the most intense debates in contemporary America involves conflicts between religious liberty and other key values like civil rights. To shed light on such problems, courts and scholars often look to the historical background of the Free Exercise Clause of the First Amendment. But this inquiry turns out to be no less controversial. In recent years, a growing number of scholars has challenged the traditional account that focuses on the roles of Thomas Jefferson and James Madison in the movement to protect religious liberty in late eighteenth-century America. These scholars emphasize that most of the political energy behind the movement came from Evangelical Christians. On this revisionist account, we should not understand the Free Exercise Clause and corresponding state provisions in terms of the Enlightenment views of Jefferson and Madison, which these scholars characterize as secular, rationalist, and skeptical – if not hostile – toward religion. Instead, those protections were intended to promote religion and especially Christianity.

In this Article, I offer a different understanding of the intellectual foundations of the Free Exercise Clause. The most basic view that supported religious liberty was neither secular rationalism nor Christian Evangelicalism but what contemporaries called natural religion. This view held that human beings were capable of using reason to discern the basic principles of religion, including the duties they owed to God and one another. Because religion was founded on reason, individuals had an inalienable natural right to develop their own beliefs and to worship in accord with them. At the same time, that right was limited by the law of nature, which required people to respect the rights of others. In this way, the concept of natural religion established both the foundations and the limits of religious liberty. This view enabled people with different religious and philosophical perspectives to find common ground. It provided the basis for a political coalition between Evangelicals, rationalist Christians, and Enlightenment liberals that secured the adoption of state and federal constitutional guarantees for religious freedom.

The Article begins by demonstrating that natural religion and its associated ideas of natural law and natural rights were central to the intellectual world of eighteenth-century Americans. Those ideas played a vital part in many areas of thought, including political and moral philosophy, natural jurisprudence, English law, Christian and Deist theology, and even Newtonian natural science – intellectual strands that came together in the Radical Whig ideology that animated the American Revolution. Next, I explain how those ideas can enhance our understanding of the religious liberty provisions of the first state declarations of rights; the political controversy that culminated in the passage of Jefferson’s Bill for Establishing Religious Freedom in Virginia; and the debates surrounding the adoption of the Federal Constitution and the Free Exercise Clause itself. Finally, I explore the founders’ views on the problem of religious exemptions from civil laws, and discuss the implications of this history for our current debates over civil rights and religious liberty – a subject that the Supreme Court recently grappled with in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and that it has agreed to revisit next Term in Fulton v. City of Philadelphia.

07/09/2020

Intentionalist and Textualist Critiques of Bostock v. Clayton County [updated]
Michael Ramsey

For an intentionalist perspective, in The Public Discourse, Robert Lowry Clinton (Southern Illinois): Textual Literalism and Legal Positivism: On Bostock and the Western Legal Tradition.  From the introduction: 

Much ink has been spilled about the Supreme Court’s decision in Bostock v. Clayton Countyin which Justice Neil Gorsuch held that the plain meaning of the relevant words in Title VII of the Civil Rights Act of 1964 entails forbidding employment discrimination on the grounds of sexual orientation and gender identity as part of forbidding discrimination based on “sex.”...

While the dissenting opinions of Justices Alito and Kavanaugh are sufficiently persuasive to defeat the majority’s inclusion of sexual orientation and gender identity within Title VII’s understanding of “sex,” I wish to bring to light another feature of the issue before the Court in Bostock. This feature is the wider jurisprudential background that bears upon not merely the issue in these cases, but legal interpretation more generally. One can only hope that the approach offered in the majority opinion does not become the new normal, because such a move would trash more than two millennia of legal development.

...

Justice Gorsuch’s opinion for the Court in Bostock has been hailed as an exercise in “textualism,” an “-ism” that is often touted for its apparent simplicity—a simplicity that is, sadly, most often illusory. The “textualism” employed by Justice Gorsuch in Bostock is not merely wrong (as Justice Kavanaugh effectively demonstrates), but a blatant circumvention of time-honored rules of statutory interpretation in the Western legal tradition. Mere analysis of the words in a legal text is not—and has never been—an end in itself for courts. Rather, it is a means of assisting courts in ascertaining the will of a lawgiver. In the section on “Powers and Duties of Judges,” Justinian’s Institutes declares that “[a]bove all he [the judge] must be sure not to depart from the statutes, imperial pronouncements, and custom.”

Following Justinian, in the Anglo-American legal tradition the most important conventions for interpreting legal documents embody various mixtures of text, tradition and logic. All have the sole purpose of directing courts in their search for the legislative will. In other words, these rules are all “intentionalist”: they are premised on the idea that there is a “true” meaning underlying any written legal text, and that this meaning is founded on the historical intentions of the makers of that text.

And from later on:

These are just a few of the most prominent examples in a seemingly endless train of commentary —with few if any contrary examples. They attest to a centuries-long agreement that the law cannot be read from the mere words of a legal text, but only from the will, or intention, of the lawgiver. Discernment of intent must begin from a consideration of the words used by the lawgiver to express the law, but it cannot end there. The object, end or purpose of the law—more precisely, the “mischief” that it was enacted to overcome—is crucial for determining its meaning. Any uncertainties in the meaning of the terms employed by the lawgiver must be resolved in accord with general custom and common usage at the time the law was enacted.

...

Textual literalism is an illicit preoccupation with the words of a writing divorced from consideration of the meaning being communicated by the writer. According to Vattel, it is a species of fraud: “Good-faith adheres to the intention; fraud insists on the terms, when it thinks that they can furnish a cloak for its prevarications.” Pushed to its logical extreme, as was done in the Bostock opinion, this kind of textual preoccupation generates meaninglessness—which is exactly what an interpreter wishing to attribute meanings not intended by the writer wants to do. Under this approach, words become mere empty vessels into which interpreters can pour anything they like.

(Thanks to Michael Perry for the pointer).

I think this critique is unfair to textualism, although Bostock in particular would be easier to decide on an intentionalist approach.  In general, though, it doesn't seem to me that textualism produces an "empty vessel" at least so long as the meaning of the words is taken in the context in which they were enacted.

For a textualist critique of Bostock, in National Review, Randy Barnett & Josh Blackman: Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases.  From the introduction:

[W]e were both surprised and disappointed by Justice Gorsuch’s majority decision [in Bostock]. And after some reflection, we think we know where he went wrong. Justice Gorsuch’s analysis did not begin with first principles. Rather, he simply assumed that decades of case law accurately interpreted Title VII. Indeed, he treated decades of precedent as part of the “law’s ordinary meaning” in 1964. Moreover, Justice Gorsuch failed to recognize the relationship between two essential phrases in Title VII: “discriminate against” and “because of.” These terms cannot be considered in splendid isolation. When combined, they reference discrimination based on bias or prejudice. In short, Justice Gorsuch built an elaborate textualist framework on a shaky foundation. Regrettably, this halfway textualism led Justice Gorsuch astray.

And from the core of the argument:

Let’s start with the first term. How was the phrase “discriminate against” understood in 1964? Justice Gorsuch cites the definition of “discriminate” from Webster’s 1954 New International Dictionary: “To make a difference in treatment or favor (of one as compared with others).” But that’s not the entire phrase used in the statute. Title VII refers to “discriminate against.” And the additional word “against” modifies the meaning.

To define “discriminate against,” Justice Gorsuch relied on a 2006 decision by Justice Breyer, which stated “no one doubts that the term ‘discriminate against’ refers to distinctions or differences in treatment that injure protected individuals.” However, Justice Breyer was interpreting a different provision of Title VII that governed retaliation. Moreover, Justice Breyer made no effort to understand how “discriminate against” was understood in 1964. Instead, he relied on a 1989 decision by Justice William Brennan. But this decision did not turn on the meaning of “discriminate against.” Rather, Justice Brennan considered the phrase “because of.” Justice Gorsuch’s research trail slammed into a brick wall. Yet despite this incomplete analysis, Justice Gorsuch concluded that the phrase “to ‘discriminate against’ a person, then, would seem to mean treating that individual worse than others who are similarly situated.”

07/08/2020

Lee Strang on Jeremy Telman on Strang on Originalism
Michael Ramsey

Lee J. Strang (University of Toledo College of Law) has posted Originalism is a Successful Theory (In Part) Because of its Complexity: A Response to Professor D.A. Jeremy Telman, The Structure of Interpretative Revolutions (35 Const. Comment. __ (2020)) (34 pages) on SSRN.  Here is the abstract: 

Professor Telman’s review of Originalism’s Promise: A Natural Law Account of the American Constitution is thoughtful — it identifies positive contributions made by Originalism’s Promise and offers pointed criticisms where Professor Telman believes its arguments fall short. Professor Telman’s review is also an excellent example of the genre because it goes further and argues that Originalism’s Promise is itself a manifestation of originalism’s dire predicament, in Professor Telman’s view, its “crisis.” Professor Telman’s review continues his scholarly engagement with originalism, and originalism is the better for it.

In addition to the many and variety of particular criticisms Professor Telman lodges against Originalism’s Promise, three fundamental and inter-related critiques underlay much of his evaluation. First, Professor Telman claims that my conception of originalism does not adequately acknowledge or deal with stubborn constitutional indeterminacy. Second, he contends that the Constitutional Communication Model of originalism is too thin because it hews to a middle-road among different conceptions of originalism and this opens it up to “ideologically-driven and outcome-determinative” use. Third, Professor Telman asserts that Originalism’s Promise works so hard to force the theory to fit (a fundamentally nonoriginalist or eclectic) American constitutional practice that it exemplifies how originalism is fracturing under its complex intellectual “appendages.”

In this brief Response, I focus my remarks on these three fundamental contentions and argue that Originalism’s Promise is an example of a complex theory successfully grappling with the complex phenomenon it is attempting to explain. Its embrace of constitutional construction (with its premise of constitutional underdeterminacy) is a powerful example of the theory better fitting constitutional practice while, at the same time, becoming more complex. Originalism’s Promise navigates contemporary originalist scholarship and charts a path that incorporates (what is, to my lights) the best of the extant literature. This too, makes the theory more complex. I then argue that Originalism’s Promise exemplifies the complexity that any successful intellectual account of a complex phenomenon, like American constitutional practice, must possess in order to be persuasive to educated audiences. After briefly addressing Professor Telman’s post-originalist paradigm claim, in the last part, I address the most important of Professor Telman’s particular criticisms.

Professor Strang's important book is Originalism's Promise: A Natural Law Account of the American Constitution (Cambridge Univ. Press 2019). Here is the book description from Amazon:

The foundation of the American legal system and democratic culture is its longstanding written Constitution. However, a contentious debate now exists between originalists, who employ the Constitution's original meaning, and Nonoriginalists, who argue for a living constitution interpretation. The first natural law justification for an originalist interpretation of the American Constitution, Originalism's Promise presents an innovative foundation for originalism and a novel description of its character. The book provides a deep, rich, and practical explanation of originalism, including the most-detailed originalist theory of precedent in the literature. Of interest to judges, scholars, and lawyers, it will help all Americans better understand their own Constitution and shows why their reverence for it, its Framers, and its legal system, is supported by sound reasons. Originalism's Promise is a powerful contribution to the most important theory in constitutional interpretation.

07/07/2020

The Faithless Electors Case: Not as Bad as it Might Have Been [Updated with Comment by Andrew Hyman]
Michael Ramsey

Monday's decision in Chiafalo v. Washington (the "faithless electors" case) was a relatively short, crisp, kind-of textualist/originalist opinion by Justice Kagan (for seven Justices, with Thomas, joined in part by Gorsuch, concurring separately).  John McGinnis had earlier feared a potential setback for originalism in this case if the Justices were swayed more by current policy intuitions than by attention to text and original meaning.  But, whatever they may have actually been swayed by, the opinion itself keeps policy to a minimum.  And, as Josh Blackman points out at Volokh Conspiracy, Justice Kagan has a nice two paragraphs about the difference between what the framers wrote and what they may have expected or hoped for: 

The Electors and their amici object that the Framers using those words expected the Electors' votes to reflect their own judgments. Hamilton praised the Constitution for entrusting the Presidency to "men most capable of analyzing the qualities" needed for the office, who would make their choices "under circumstances favorable to deliberation." The Federalist No. 68. So too, John Jay predicted that the Electoral College would "be composed of the most enlightened and respectable citizens," whose choices would reflect "discretion and discernment." The Federalist No. 64.

But even assuming other Framers shared that outlook, it would not be enough. Whether by choice or accident, the Framers did not reduce their thoughts about electors' discretion to the printed page. All that they put down about the electors was what we have said: that the States would appoint them, and that they would meet and cast ballots to send to the Capitol. Those sparse instructions took no position on how independent from—or how faithful to—party and popular preferences the electors' votes should be.

Agreed (methodologically).  But I'm not so sure on the substance.  Justice Kagan's opinion depends largely on her conclusions that the states' power to "appoint, in such Manner as the Legislature thereof may direct, a number of Electors" conveys power to control the electors' votes (through fines or removal and replacement of electors violating instructions). True, she goes on to examine subsequent practice, with citations to the Noel Canning case -- but unlike Noel Canning, she uses the subsequent history to confirm, rather than depart from, the original meaning of the text.  (Thus Noel Canning dissenters Roberts and Alito join the majority here with no contradiction).  So the opinion really rests on the text.

And I am not so sure on the text.  Specifically, my problem is that the Constitution gives the states the power to appoint Senators (prior to the Seventeenth Amendment) in similar words: "The Senate of the United States shall consist of two Senators from each State, chosen by the Legislature thereof, for six years..."  But no one (so far as I know) thought states could control their Senators' votes once chosen.  Why are Senators different from electors?  

I suppose one could say that because Senators are specifically given a six-year term, states can't remove them.  But electors are also given a term, at least implicitly, lasting through the casting of the votes.  And even if states can't remove Senators because of the six-year term, why couldn't a state require its Senators to vote in a certain way, and fine them if they did not?

My answer is that the power to "chose" Senators doesn't include the power to direct how they vote (same with a President appointing Supreme Court Justices).  But by the same reasoning, the power to direct the manner in which an elector is appointed would not include the power to direct how the elector votes.  Perhaps the majority has an explanation for why the two are different, but I did not see it.

Justice Thomas doesn't do much better in concurrence.  He says that the power to direct the "manner" of appointment of electors does not say anything about the power to direct the electors' vote.  I agree. But then he says that, because nothing in the Constitution says the states can't direct the electors, that power is reserved to the states under the structure of delegated powers and the Tenth Amendment.  There's something to be said for that view.  But -- it too runs up against the problem of the Senators.  Nothing in the original Constitution said states couldn't direct Senators how to vote.  In fact, even after the Seventeenth Amendment it is still true that nothing in the Constitution says states can't direct Senators how to vote. 

Of course, maybe under the original Constitution states could direct Senators how to vote (though I think that would have been quite a surprise to the founding generation).  And again, maybe Senators are different from electors.  But I'm not sure how.

Nonetheless, the opinions are basically textualist/originalist, even if I have some doubts about the reasoning. And it's admittedly a difficult case.  So that should count as a win.

ANDREW HYMAN ADDS:   Even assuming the Court in Chiafalo was correct that states may disincentivize faithless voting by imposing subsequent fines, that’s very different from the question whether a state may snoop at an elector’s ballot, tear up the ballot if the vote is wrong, and replace the elector with someone who will hopefully vote the way the state wants.  As best I can tell, once an elector votes, the Twelfth Amendment imposes a non-discretionary duty to include that vote in a list that is then sealed and sent to the capitol; the electors “shall make distinct lists of all persons voted for as President....” 

07/06/2020

Randy Barnett on the Declaration of Independence
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: What the Declaration of Independence Said and Meant -- It officially adopted the political theory of the United States: securing the individual rights of We the People.  From the introduction:

The Declaration of Independence used to be read aloud at public gatherings every Fourth of July. Today, while all Americans have heard of it, all too few have read more than its second sentence. Yet the Declaration shows the natural rights foundation of the American Revolution, and provides important information about what the founders believed makes a constitution or government legitimate. It also raises the question of how these fundamental rights are reconciled with the idea of "the consent of the governed," another idea for which the Declaration is famous.

...

When reading the Declaration, it is worth keeping in mind two very important facts. The Declaration constituted high treason against the Crown. Every person who signed it would be executed as traitors should they be caught by the British. Second, the Declaration was considered to be a legal document by which the revolutionaries justified their actions and explained why they were not truly traitors. It represented, as it were, a literal indictment of the Crown and Parliament, in the very same way that criminals are now publicly indicted for their alleged crimes by grand juries representing "the People."

...

In Our Republican Constitution: Securing the Liberty and Sovereignty of We the People, I explain how the Declaration encapsulated the political theory that lead the Constitution some eleven years later. To appreciate all that is packed into the two paragraphs that comprise the preamble to the list of grievances, it is useful to break down the Declaration into some of its key claims. ...

07/03/2020

Andrew Koppelman: Bostock, LGBT Discrimination, and the Subtractive Moves
Michael Ramsey

Andrew Koppelman (Northwestern University School of Law) has posted Bostock, LGBT Discrimination, and the Subtractive Moves (Minnesota Law Review Headnotes, forthcoming) (34 pages) on SSRN.  Here is the abstract:

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy.

This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.

Via Larry Solum at Legal Theory Blog, who comments:

Highly recommended, but the assumption that textualism is a form of literalism is surely wrong.  Textualists aim to recover the communicative content conveyed by the text to its intended readership, not the literal meaning or sparse semantic content of the text considered acontextually.  Download it while it's hot!

07/02/2020

Eric Segall: Is Living Constitutionalism our Law?
Michael Ramsey

At Dorf on Law, Eric Segall: Is Living Constitutionalism our Law? A Response to Charles Barzun and Jack Balkin.  From the introdcution:

Last Wednesday I had the great privilege of recording my first Supreme Myths Podcast/Video with Yale Law Professor Jack Balkin. Also last week, Professor Charles Barzun completed a three-part series on Balkinization on living constitutionalism and originalism. Both Balkin and Barzun share some common views about constitutional interpretation, judicial review, and the relationship between originalism and living constitutionalism that I will address in this post.

Both Balkin and Barzun believe that constitutional law is deeply affected by much more than just the Constitution's original meaning. ...

But Balkin also believes the Constitution's adaptability in the hands of judges is consistent with originalism (hence the title Living Originalism). In his view, the original Constitution sets forth rules, standards, and principles, and when the non-rule parts of the Constitution are litigated, judges should, indeed, must, treat them them as licenses to effectuate constitutional change. ... 

Barzun tells a similar story. He argues that the Supreme Court does not generally explain its decisions through pure moral reasoning or through reference to its own or our system's democratic legitimacy. ...

At the end of his blog post comes the kicker. Barzun, like Balkin, suggests that all of this change (living constitutionalism) is justified by the meaning of our original Constitution. He says the

approach I’ve just described has such a pedigree, as do the constitutional doctrines it has yielded. Those doctrines fit naturally with originalism because they are conceptualized as changing applications of constitutional principles in light of new facts—or new understandings of facts.... It is our law, and judges take an oath to support it.

And from the core of the argument:

There are at least two major objections to the general idea that living constitutionalism is authorized by the Constitution's original meaning. The first one is purely historical. As I detailed in my book Originalism as Faith, historians have shown that the framers both expected and wanted highly deferential judicial review. ...

Neither Balkin nor Barzun, nor most other originalists today, have wrestled with this problem (the original originalists didn't have this problem). The idea that judges should either pave the way for, or be the agents of, constitutional change would have shocked most of the founding generation. Professor Jud Campbell captured this idea beautifully in a magnificent article on how today's law of free speech has nothing to do with the first amendment's original meaning because the founding generation did not equate having rights, even natural law rights, with judicial enforcement of those rights. Strong, non-deferential judicial review may be good or bad, right or wrong, but it is not consistent with the original Constitution.

The second objection focuses more on today than yesterday. Both Balkin and Barzun describe the process of constitutional change richly and accurately. But neither fully address what Professor Christopher Sprigman has called the "making it all up" problem. Or, as Dean Erwin Chemerinsky observed in the Harvard Law Review Foreword in 1988, the Court's constitutional law decisions are nothing more or less than the aggregate of the value preferences of the Justices. ...

If my descriptive account is accurate, a real question is why society today would defer to unelected, life-tenured, elite lawyers to impose their values on the rest of us. ...

I agree with pretty much all of this, except: I think the Framers did believe in robust judicially enforceable rights, but they were the textual rights spelled out in the Constitution or the traditional rights incorporated by reference (as with the First Amendment).

07/01/2020

Gregory Maggs: A Guide and Index for Finding Evidence of The Original Meaning of The U.S. Constitution in Early State Constitutions and Declarations of Rights
Michael Ramsey

Gregory E. Maggs (George Washington University Law School) has posted A Guide and Index for Finding Evidence of The Original Meaning of The U.S. Constitution in Early State Constitutions and Declarations of Rights (98 N.C. L. Rev. 779 (2020)) (59 pages) on SSRN.  Here is the abstract:

When the original thirteen states declared independence from Great Britain, their former colonial charters became obsolete. Eleven states quickly addressed this situation by adopting state constitutions and, in some cases, declarations of rights to replace their charters. These state documents greatly influenced the drafting of the United States Constitution. Accordingly, scholars and judges often cite these early state documents when making claims about the original meaning of the U.S. Constitution. This Article provides a concise guide to this practice of finding evidence of the original meaning in these early state constitutions and declarations of rights. It explains the history of the documents, where to find them online, and how writers have used them to discern the original meaning of the U.S. Constitution. The Article includes a comprehensive index, with more than 1700 entries, to help researchers discover relevant provisions.

Other articles in this very valuable series by Professor Maggs:

A Concise Guide to the Federalist Papers as a Source of the Original Meaning of the United States Constitution

A Concise Guide to the Records of the Federal Constitutional Convention of 1787 as a Source of the Original Meaning of the U.S. Constitution

A Concise Guide to the Articles of Confederation as a Source for Determining the Original Meaning of the Constitution

A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution

A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment's Original Meaning

A Concise Guide to the Records of the State Ratifying Conventions as a Source of the Original Meaning of the U.S. Constitution