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5 posts from August 2020

08/05/2020

Curtis Bradley & Neil Siegel: Historical Gloss, Madisonian Liquidation, and the Originalism Debate
Michael Ramsey

Curtis Bradley (Duke University School of Law) and Neil Siegel (Duke University School of Law) have posted Historical Gloss, Madisonian Liquidation, and the Originalism Debate (Virginia Law Review, Vol. 106, No. 1, 2020) (72 pages) on SSRN>  Here is the abstract:

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such post- Founding governmental practice in discerning the Constitution’s separation of powers. That approach has been referred to as the “historical gloss” method of constitutional interpretation, based on language that Justice Frankfurter used to describe the concept in his concurrence in the Youngstown steel seizure case. Some originalist commentators, however , have advanced a potentially competing approach to crediting post-Founding practice, which they refer to as “liquidation,” an idea that they ascribe to James Madison and certain other members of the Founding generation.

To date, there has not been any systematic effort to compare gloss and liquidation, even though the differences between them bear on the constitutionality of a range of governmental practices relating to both domestic and foreign affairs in the fields of constitutional law and federal courts. This Article fills that gap in the literature. We first provide an account of what must be shown in order to establish historical gloss. Our account focuses on longstanding governmental practices that have proven to be stable—that is, practices that have operated for a significant amount of time without generating continued interbranch contestation. We then consider the extent to which the liquidation concept differs from that of gloss and whether those differences render liquidation more or less normatively attractive than gloss. We argue that a narrow account of liquidation, which would focus primarily on early historical practice and disallow “re- liquidation” of constitutional meaning once it had become settled by practice, most clearly distinguishes liquidation from gloss, but that it does so in ways that are normatively problematic. We further argue that a broader account of liquidation, as recently offered by Professor William Baude, responds to those normative concerns by diminishing the distinction between liquidation and gloss, but that significant differences remain that continue to raise normative problems for liquidation. We also question whether either account of liquidation is properly attributed to Madison.

08/04/2020

Ethan Leib & Andrew Kent: Fiduciary Law and the Law of Public Office
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) and Andrew Kent (Fordham University School of Law) have posted Fiduciary Law and the Law of Public Office: Suggestions for a Research Agenda (William & Mary Law Review, forthcoming) (46 pages) on SSRN.  Here is the abstract:

A law of public office crystallized in Anglo-American law in the seventeenth and eighteenth centuries. This body of law — defined and enforced through a mix of oaths, statutes, criminal and civil case law, impeachments, and legislative investigations — imposed core duties on public officeholders: Officials needed to serve the public good, not their own private interests; were barred from acting ultra vires; could often be required to account to the public for their conduct in office; and needed to act with impartiality, honesty, and diligence. Office-holding came to be viewed as conditional, with officers removable for misdeeds. This law of public office reflected something that looks similar to modern fiduciary duties of loyalty and care.

In this Essay, we extend the historical record describing this law of public office, and make several new claims — historical and theoretical. First, there are strong reasons to suspect that the law of public office and private fiduciary duties developed together and influenced each other. During the critical centuries we explore, the duties of officeholders such as trustees, executors, and corporate directors were developing alongside the duties of officials such as tax collectors and government commissioners. Parliament and other actors repeatedly used the language of trust, trusteeship, guardianship, and account to define the law of public offices. And public law concerns about abuse of power and the need for honesty, fidelity, and altruism in service of others may have seeped from public law into private fiduciary law. Influential political theory about the monarchy and lesser magistrates was also using trust and related legal language to set forth a fiduciary conception of public office-holding; the theoretical developments in political theory not only drew from legal concepts but may have helped shape them, as well.

One Essay cannot decisively establish whether the similarities in language, concept, and timing were mere coincidence or rather evidence of some conscious co-development in the law of public offices, political theory, and fiduciary law. Proving (or disproving) actual causal relationships will need to be the work of the future. We conclude with some potential implications for our research agenda, should further work continue to confirm our findings here. Fiduciary political theorists should be less anxious about drawing from private law models — and private law fiduciary theorists might need to be less insistent on the purity of the private sphere. As we show, during the critical periods when fiduciary law and the law of public office come into their own, the public-private distinction wasn’t yet creating the divide that exists today. Our research agenda invites more mutual learning — both historically and for law and institutions today.

08/03/2020

Professor Lawrence Solum Joins UVA Law Faculty
Michael Ramsey

From the University of Virginia's news website, Eric Williamson: Legal Theorist Lawrence Solum To Join Law Faculty.  On Professor Solum's originalist scholarship: 

Solum is an originalist, seeking to divine the meaning of the language in the Constitution as it was understood at the time of its creation, more than 200 years ago. Integral to his personal approach is “the idea that originalists should employ all of the resources of linguistics and the philosophy of language in order to rigorously investigate what the constitutional text meant,” he said.

In 2017, he testified before Congress in accordance with his views as part of the confirmation process for U.S. Supreme Court Justice Neil Gorsuch.

But what makes Solum different than many of his originalist peers is that he’s not a conservative, nor does he believe that the originalism school of thought always translates as contrary to a progressive judiciary. His research has found that originalism sometimes leads to liberal and progressive outcomes, as he reveals in his article “Surprising Originalism.” [Ed.: I think most if not all originalist scholars agree with this proposition.]

(Via How Appealing.)

Professor Solum was previously at Georgetown law, along another noted originalist Randy Barnett.  At UVA, he joins originalist-oriented scholars Saikrishna Prakash, John Harrison and Caleb Nelson, among others.

How many other top law faculties have even one originalist-oriented scholar?

08/02/2020

John Witte: Historical Foundations and Enduring Fundamentals of American Religious Freedom
Michael Ramsey

John Witte (Emory University School of Law) has posted Historical Foundations and Enduring Fundamentals of American Religious Freedom (Journal of the Society of Christian Ethics 33 (2020): 156-167) (13 pages) on SSRN.  Here is the abstract:

The eighteenth-century American founders believed that religion is special and deserves special constitutional protection, and that all peaceable faiths must be drawn into the constitutional process and protection. The founders introduced six constitutional principles for the protection of religious freedom – freedom of conscience, free exercise of religion, religious pluralism, religious equality, separation of church and state, and no state establishment of religion. Since the 1940s, the United States Supreme Court has upheld these religious freedom principles in more 170 cases, albeit unevenly of late. Moreover, in recent years religious freedom has come under sharp popular and academic attack, particularly as religious pathologies have come to light and religious freedom claims have clashed with sexual liberty claims. This Essay calls for a return to the first principles of religious freedom for all, at home and abroad, and for a new balance between religious freedom and other fundamental rights claims.

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

08/01/2020

Ryan Williams: Personal Jurisdiction and the Declaration of Independence
Michael Ramsey

Ryan C. Williams (Boston College Law School) has posted Personal Jurisdiction and the Declaration of Independence (53 pages) on SSRN.  Here is the abstract:

The Declaration of Independence accuses the King of having “obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.” But despite the seemingly natural resonance of this particular charge with the legal profession, legal scholars have displayed remarkably little interest in exploring its factual foundations. This Essay traces the colonists’ complaint to a somewhat surprising and unexpected source — a dispute about personal jurisdiction.

During the late eighteenth century, the administrative officials responsible for overseeing Britain’s North American possessions adopted an increasingly restrictive view of judicial jurisdiction, seeking to stamp out the custom of foreign attachment of nonresidents’ property that had proliferated throughout the colonies. The elected officials of North Carolina pushed back against the Crown’s efforts to deprive them of their privilege of foreign attachment by refusing the Governor’s insistence that a provision authorizing the procedure be stricken from a bill renewing authorization for the colony’s court system. The resulting impasse effectively terminated judicial authority in North Carolina and left the residents of the Colony without a fully functioning court system for more than three years. The Declaration of Independence, drafted amidst the North Carolinians’ showdown over foreign attachment, incorporated their complaint as one of the twenty-eight charges of royal abuse that the colonists claimed justified their claim to independence.

Ironically, the restrictive ethos that animated Britain’s late eighteenth-century hostility to foreign attachment and that provided the grounds for the colonists’ complaint finds echoes in the modern Supreme Court’s restrictive approach to personal jurisdiction. This Essay uses the experience of the Founding-era showdown over personal jurisdiction as a lens through which to examine modern efforts by the Court to cut back on the jurisdictional reach of state courts. Although this Essay does not propose a specific framework to replace the Court’s existing doctrine, it urges the Court to abandon its defendant-centric emphasis in favor of an approach that gives more meaningful credence to the sovereign interests of the respective states in determining the jurisdictional reach of their own courts.