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35 posts from August 2020


Tribes, Nations, States: Our Three Commerce Powers
Chris Green

I have posted Tribes, Nations, States: Our Three Commerce Powers to SSRN. The abstract:

This Article argues that one aspect of the power to regulate “Commerce with foreign Nations … and with the Indian Tribes” is broader than the power over “Commerce … among the several States.” If “Tribes” and “Nations” consist of people, but “States” of territory, then “Commerce … among the several States” must cross state lines, even though small, local transactions between Americans and non-citizens are commerce “with foreign Nations” or “with the Indian tribes.”

Why think that? There is considerable evidence that the tribal commerce power replaces “trade … with the Indians” in the Articles of Confederation, but early direct definitions of the other two commerce powers are surprisingly rare. Antifederalists complained at length that the power to tax for the general welfare would make the federal government all-powerful, but not so about the commerce power which largely did the job after 1937. In January 1788, Federal Farmer 11 described the foreign commerce power as “trade and commerce between our citizens and foreigners.” Elbridge Gerry restated it in 1790 as “trade with foreigners.” Jefferson and Randolph’s 1791 bank objections defined foreign and tribal commerce as commerce with non-citizens. Martens’s 1788 international-law treatise explained “commerce … with foreign nations” as including “power over the foreigners living in its territories.” The 20-year slave-trade protection presupposes broad foreign commerce power, but narrow interstate commerce power: Congress may control “migration,” but not domestic slavery or other labor conditions. The earliest attacks on federal power over non-citizens’ commerce discussing the 1794 Jay Treaty and 1798 Alien Act were internally inconsistent. Despite lots of its own inconsistency, the Supreme Court adopted this view in 1866 in United States v. Holliday.

Why care? Broad foreign and tribal commerce powers undermine the late-nineteenth-century motivation for unenumerated “plenary” powers over foreign affairs or tribes; a limited interstate commerce power allows “powers not delegated to the United States by the Constitution” to refer to something. The tribal commerce power likewise supports the Indian Child Welfare Act’s regulation of the transfers of tribal-member custody. Congress’s 1870 protection of non-citizens’ occupational and contracting rights and 1986 prohibition on employment discrimination rest on its foreign commerce power, not the Fourteenth Amendment; Congress may regulate non-citizens’ labor conditions, but not labor conditions generally. Antidiscrimination law can then refocus on equal citizenship—the Privileges or Immunities Clause for states and fiduciary principles for the federal government—instead of historically-less-plausible rights for all humanity. Cases like Graham v. Richardson would turn on pre-emption, and three gaps in antidiscrimination law—federal citizenship classifications in Mathews v. Diaz, governmental functions in Ambach v. Norwick, and tribal classifications in Morton v. Mancari—receive possible justification.

Comments welcome!

John McGinnis on Adrian Vermeule on Originalism
Michael Ramsey

At Law& Liberty, John McGinnis: Originalism: More than a Presumption.  From the introduction:

Adrian Vermeule, constitutional originalism’s foremost opponent on the right, has again criticized the theory and its statutory kissing cousin, textualism. While he argues that positivism cannot provide a justification for originalism or textualism, he concedes that “substantive goods of political morality” might serve to provide textualism and originalism support. But, according to Vermeule, even such goods could justify only a “presumptive originalism.” Under presumptive originalism, interpreters should begin with a presumption of following the original meaning. But if originalism yields a very bad result as assessed by political morality, the original meaning of a provision should not be followed.

Vermeule’s concession may be larger than he realizes, because most modern theorists of originalism invoke substantive political goods to justify following original meaning. And once it is agreed that substantive goods can justify presumptive originalism, it should follow that they might justify originalism absolutely. Whether originalism should be followed presumptively or absolutely is a contingent question that depends on the nature of the goods that justify it and the capacity of other institutions—such as the amendment process—to realize substantive goods when an original interpretation does not capture them directly and immediately.

First, most defenders of originalism agree with Vermeule that originalism needs a justification outside the meaning of statutory or constitutional words, or even outside the practice of judges in following them: There must be some substantive political morality behind the choice to follow original meaning. Justice Antonin Scalia thought that originalism’s cardinal virtue was that it generated clear rules. Keith Whittington has argued that originalism respects the great political good of popular sovereignty. At this site, Ilan Wurman recently contended that “Originalism allows us to conserve [the] balance among the principles of our Founding: self-government, ordered liberty, and (at least since the ratification of the Fourteenth Amendment) equality under law.” Mike Rappaport and I have shown that originalism is justified by a procedural excellence: a constitution is likely to be good when made under the kind of consensus-making rules that characterize our own Constitution. No other structure is as likely to lead to good results.

While I am partial to our own theory as capturing the best justification for originalism, these overlapping goods, taken together, provide a very powerful justification of the kind that Vermeule demands. The consensus-making provisions contained popular sovereignty so that it would likely yield the best possible results. And, as befits a sound constitution-making process, these results generated political goods such as those praised by Ilan Wurman and Justice Scalia.

And in conclusion:

Vermeule concedes that his preference for common good constitutionalism over presumptive originalism is  “one of contingent judgment rather than of principle” He believes that presumptive originalism “might have been correct, so to speak, although it turns out not to be.” Thus, for Vermeule the debate must be conducted based on considerations of our circumstances, including human nature. But the preference for presumptive originalism over originalism tout court is similarly based on an assessment of our human circumstancesIn a world where individuals have very imperfect barometers of the good—both because of passions and limited perspective—it is better to rely on the meaning of a constitution created by consensus, at least until another consensus is forged to change it.


Caleb Nelson: Vested Rights, "Franchises," and the Separation of Powers
Michael Ramsey

Caleb Nelson (University of Virginia School of Law) has posted Vested Rights, "Franchises," and the Separation of Powers (University of Pennsylvania Law Review, forthcoming 2021 (vol. 169)) (92 pages) on SSRN.  Here is the abstract:

Modern courts and commentators have had trouble distinguishing the kinds of decisions that require “judicial” power from the adjudicative tasks that Congress can authorize administrative agencies to perform in the course of “executing” federal law. In a prior article ("Adjudication in the Political Branches," 107 Colum. L. Rev. 559 (2007)), I sought to explain traditional doctrines on that topic. For much of American history, Congress could authorize executive-branch agencies to administer and dispose of “public rights” belonging to the federal government or the people collectively, and Congress also could give agencies conclusive authority with respect to the administration of “privileges” that federal law gave private individuals or entities. But the political branches did not have similar sway over vested private “rights.” Only true courts could conclusively determine either that a private person had forfeited such rights or that the claimed rights had never vested in the person to begin with.

In my earlier article, I referred to the category of “franchises”—special powers or perquisites that the government gave private people who, in turn, did something of value for the public. Because no one had a vested right to be granted a franchise in the first place, I lumped franchises together with privileges. That taxonomy may have influenced the Supreme Court’s analysis of patents in Oil States Energy Services v. Greene’s Energy Group (2018). But the story is actually more complex. In the nineteenth century, once the government granted a franchise, private rights normally were thought to vest in the franchisee. That idea affected constitutional doctrine with respect to a wide array of legal interests, including not only patents but also corporate charters, the power to operate ferries and toll-roads, and more.

This Article explores the concept of franchises and their interaction with American-style separation of powers. In the process, it illuminates historical understandings of the public/private distinction, unearths new evidence about the constitutional status of patents, and sheds light on the traditional roles of each branch of government.


Weisberg on Chiafalo
Mike Rappaport

David Weisberg has criticized my argument that Chiafalo wrongly allowed states to control the votes of presidential electors.  But like many others who disagree with my analysis, Weisberg does not address the strongest arguments against his view.   

First, he does not address how his view would apply to senatorial elections at the time of the Constitution. As I wrote in my initial post:

The original Constitution provided for state legislatures to select the Senators. But no one argued that this allowed the state to pass laws that bound Senators as to how to vote. Similarly, the Constitution provides for the appointment of federal judges by the President with the advice and consent of the Senate, but no one argued that this appointment power allows the President and Senate to control how the judges vote.

I didn’t have space to add a similar argument.  The Constitution provides that “The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.”  The consequence of interpreting the Constitution to allow the states to control presidential electors would seem to be that a state can control how the electors in the state – that is, the voters – exercise their franchise.

Weisberg argues that when someone makes a pledge, it is permissible to enforce that pledge since the pledge was voluntary.  But that is not true of these other provisions.  If candidates for the Senate under the original Constitution pledged to vote in a certain way in the Senate, would the state have the power to remove them if they did not follow this pledge?  Of course not. 

Anyone advocating Kagan or Weisbrod’s position owes us an explanation of how these provisions should be interpreted.  Yet, we do not get one – either from the Supreme Court or from the critics.

Weisberg’s main argument is based on the example of juries.  Weisberg claims that jurors’ votes can be controlled if they misapply the law in that the judge can determine the juror’s misapplied the law.  Weisberg does not mention jury factfinding, but that too might support his case.  Weisberg argues that jurors “vote” and often do so by “ballot,” so why does that not disprove my point?

Weisberg’s argument here is a version of Kagan’s argument in Chiafalo.  We can imagine situations where a constrained choice nonetheless represents a vote, by ballot, by an elector.  But for much the reason that Kagan’s arguments are weak, so are Weisberg’s.

The principal point is the context.  Yes, as Kagan shows, we can envision different contexts than presidential elections where secondary or peculiar meanings of these terms might be applied.  But so what?  The question is whether those meanings make sense in the context of presidential electors, where those secondary meanings do not make sense.  This is especially the case given the constitutional provision that provides that states are given only the power to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors” who “shall meet in their respective States, and vote by Ballot . . . .”  The specific words and the overall design of the provision, as affirmed by contemporaries such as Hamilton, suggest the electors make their own decisions.  They are electors, like the people who select members of the House of Representatives. 

Weisberg’s argument about the jury is telling.  First, it is by no means clear that our existing rules concerning juries, which allow judges to control both jury law interpretation and factfinding, are correct under the original meaning.  There is significant evidence that juries had the power to determine the law at the time of the Constitution and that review of jury factfinding was unconstitutional. 

But suppose that one rejects this evidence and concludes that jury factfinding and law interpretation can be reviewed under the original meaning.  The only good reason for doing this would be based on the claim that the institution of a jury, historically, allowed judges to review jury factfinding and law determination.  And so the specific context of juries allowed such judicial action.  But that specific context distinguishes juries from presidential electors (as does the fact that juries are not described in the Constitution as electors who vote by ballot).   

Originalism Is Our Law (At Least When It Suits Us)
Michael Ramsey

Via Neil Siegel at Balkinization, 40 law professors have signed a letter concluding that Senator Kamala Harris is a natural born citizen and thus eligible for the presidency and the vice-presidency.  The letter's argument generally parallels my thoughts on the issue, here.  (I would have signed the letter -- with a couple of minor modifications --  if anyone asked, but no one did).

Notably, the letter relies almost entirely on originalist arguments.  The Constitution's text does nothing to define the eligibility clause's phrase "natural born citizen," so we must look elsewhere for the definition.  Here is the letter's argument: 

As the Supreme Court long ago unanimously observed, “[t]he Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1874). A primary source to which the Supreme Court has consistently resorted is English common law.
And that common law, from centuries before the creation of the United States up through the nineteenth century, always treated children born within the sovereign’s territory as “natural-born subjects”—“subjects” within a monarchy being equivalent to “citizens” in a republic. The great English jurist William Blackstone, who significantly shaped the legal understandings of the Framers of the U.S. Constitution, explained in his Commentaries published shortly before American independence that “Natural-born subjects are such as are born within the dominions of the crown of England,” because by being born in English territory, they owed allegiance to the king. 1 Blackstone *365-66. In particular, he emphasized that “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”  1 Blackstone *373. The only exception Blackstone identified was children born to enemies of the realm [ed.: um, also children of foreign diplomats]. And the great U.S. Supreme Court Justice Joseph Story made exactly the same point a few decades later: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 164 (1830).
The letter also relies on the Supreme Court's description of English common law in United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898). And that's it.  Every source cited is used to show what the English common law was -- and thus what "natural born" meant -- when the Constitution was ratified.  This is exactly the methodology I used in The Original Meaning of "Natural Born" so of course it seems right to me.
But most of the signatories of the letter are not originalists (Keith Whittington, Jack Balkin and a few others excepted).  Some are prominent originalism critics (Erwin Chemerinsky, Michael Dorf, Pamela Karlan, etc.).  Yet here they rely on originalist arguments.
Will Baude is right, at least part of the time:  Originalism is our law.  When it suits us.
To be sure, these scholars may reply that originalism is indeed one of the "modalities" of constitutional argument, appropriate some times and not others.  I think that's a fair response (albeit a bit opportunistic).  But in any event they now should be precluded from the two most common arguments against originalism: (a) that it's inherently indeterminate, incoherent or impossible; and (b) that the original meaning, even if determinate, should have no force in the modern world.
The natural born issue joins others (the meaning of "emoluments," the meaning of "high crimes and misdemeanors") in which nonoriginalist scholars have found a definite and binding original meaning of a constitutional phrase.  I'm keeping a list.


Larry Alexander: Connecting the Rule of Recognition and Intentionalist Interpretation
Michael Ramsey

Larry Alexander (University of San Diego School of Law) has posted Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay (52 Conn. L. Rev. (forthcoming 2020)) (20 pages) on SSRN.  Here is the abstract:

This article, written in honor of Rick Kay and his distinguished career, addresses two areas of mutual interest: the foundations of legal systems and legal interpretation as a quest for lawmakers’ intended meanings. I attempt to show how these two topics are connected.

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

This essay is part of an outstanding symposium honoring University of Connecticut law professor and prominent originalist theorist Richard Kay -- also including among others this essay by Jeffrey Goldsworthy (Monash) and this essay by Laurence Clause (University of San Diego).


Tara Leigh Grove: Which Textualism?
Michael Ramsey

Tara Leigh Grove (University of Alabama School of Law) has posted Which Textualism? (134 Harv. L. Rev. __ (forthcoming 2020)) (36 pages) on SSRN.  Here is the abstract: 

Scholars of interpretive theory have long engaged with the battle between textualism and purposivism. But this emphasis has obscured important divisions within textualism—divisions that were on full display in the Supreme Court’s recent decision in Bostock v. Clayton County. In holding that Title VII’s prohibition on sex discrimination bars the disparate treatment of gay, lesbian, and transgender individuals, the Court applied what this Comment calls “formalistic textualism”—an approach that instructs interpreters to carefully parse the statutory text, focusing on semantic context and downplaying other concerns. But the dissenting opinions responded with their own brand of textualism. The dissents’ more “flexible textualism” allows interpreters to make sense of a statutory text by looking at social context and practical consequences. This Comment explores these competing textualisms and—drawing on principles of judicial legitimacy—offers a theoretical case for preferring the formalistic version. But whether or not one accepts that bottom line, interpretive theorists should begin to explore the fact that judges apply not simply textualism, but textualisms.

Agreed, and I think a fair criticism of Justice Scalia is that he was not entirely consistent in which textualism he was applying.


Senator Harris Is a Natural Born Citizen
Michael Ramsey

This post consolidates and extends earlier comments I (here and here) and others (especially Eugene Volokh here) have made about Senator Kamala Harris’ eligibility to be President (and derivatively her eligibility to be Vice President).  To put the conclusion up front, I think there should be no doubt that she is eligible, but reaching that conclusion requires some examination of originalist sources.

The eligibility clause (Art. II, Sec. 1, para. 5) states that only a “natural born citizen” is eligible to be President, without any further relevant definitions.  (The Twelfth Amendment adds that the Vice President must be eligible to be President).  It’s common ground that persons born in the United States to U.S. citizen parents are natural born citizens, while persons born outside the United States to non-citizen parents are not.  There are three intermediate contested categories: (a) persons born outside the United States with a U.S. citizen parent (call this the "Ted Cruz category"); (b) persons born in the United States to non-citizen permanent residents (the "Marco Rubio category"); and (c) persons born in the United States to non-citizen temporary visitors (the "Kamala Harris category," at least by the assumptions of the current debate).

In considering the original meaning of the phase “natural born,” the most obvious source is English law, which traditionally and routinely used the phrase “natural born subject.”  The founding generation in America undoubtedly knew of the English phrase through Blackstone’s Commentaries on the Law of England (1765) – the most widely circulated legal treatise in the early United States.  Blackstone wrote (pp. 354-55):

The first and most obvious division of the people is into aliens and natural-born subjects.  Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligence, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. 

Blackstone further explained (p. 357): “[n]atural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth.  For, immediately upon their birth, they are under the king’s protection … Natural allegiance is therefore a debt of gratitude.” Thus (pp. 361-62):  “The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”

As a later U.S. case concluded, “It is an indisputable proposition” that “[b]y the common law, all persons born within the ligence of the crown of England, were natural born subjects, without reference to the status or condition of their parents.” (Lynch v. Clarke, 1 Sand. Ch. 583, 639 (N.Y. Ch. 1844)).  There were narrow exceptions to this rule for persons who did not owe even temporary allegiance to the territorial monarch. But the extraordinary circumstances of these exceptions confirmed the breadth of the general rule: birth within English territory made one a “natural born” English subject. I described the rule in a prior article:

In sum, the traditional English common law was that a “natural born” subject was only one born within the territory of the king, with narrow exceptions for the children of ambassadors and other ministers, and of invading armies.  The touchstone was birth under the protection of the sovereign, which the common law understood to arise (except in unusual circumstances) from presence in the monarch’s dominions.

The phrase “natural born” thus had a clear eighteenth-century legal meaning, at least in connection with birth within sovereign territory.  Though there’s no direct evidence that the Constitution’s framers adopted this meaning, it’s a compelling inference.  English law was the source of the phrase, and anyone reading Blackstone (as the Framers did) knew that.

Applied to the modern contested categories, the conclusions are clear with respect to persons born in the United States of non-citizen permanent residents (the Marco Rubio category) and persons born in the United States of non-citizen visitors (the Kamala Harris category).  Both categories were indisputably “natural born” within the English law definition because they were born in sovereign territory under the protection of the sovereign.   As treatise-writer William Rawle wrote in 1829 (A View of the Constitution of the United States of America, p. 86):

Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution.

(The “Ted Cruz” category – persons born to a U.S. citizen parent outside the United States – is more difficult, as these persons would not be “natural born” under the tradition English common law. I argue here that this category is also “natural born” under the Constitution’s original meaning, though I concede it is a more challenging proof.)

The principal counterargument from the eighteenth century is that England was an outlier and in civil law countries citizenship did not work this way.  Most European countries and European writers treated a child’s citizenship or subjectship as descending from the parents (usually the father), not as arising from birth in sovereign territory.  Thus the child of a French subject was a French subject irrespective of the place of birth, and a child born in France to an alien father was not a French subject. The founding generation in America surely knew this too – it is described, for example, in the treatise The Law of Nations by Swiss writer Emer de Vattel (published in 1758 and widely circulated in America).  Of course, the Constitution’s framers could have adopted this rule.  But if that was what was intended, they wouldn’t have used the phrase “natural born” citizen, because “natural born” was so clearly associated with the territorial rule of English law.  And in any event, as the quote from Rawle above indicates, U.S. post-ratification practice and commentary followed the English rule, not the European rule.

In a provocative recent essay, Chapman law professor (and former Dean) John Eastman offers a different counterargument based on the first sentence of the Fourteenth Amendment, which states that “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Dean Eastman’s argument is twofold: (1) this provision defines, or at least illuminates, who are “natural born citizens” under the eligibility clause; and (2) children of temporary visitors are not included because they are not born “subject to the jurisdiction” of the United States.

In my view both steps in this argument are wrong.  As to the first, the Fourteenth Amendment does not define who is natural born.  The Amendment is a floor, providing a constitutional right to citizenship for the class of people it describes (the main target being newly freed slaves and other persons of African descent, whose citizenship was unsettled as a result of the Dred Scott case).  Nothing prevents Congress from making additional classes of people citizens, as Congress has done since 1790 for persons born abroad to U.S. citizen parents.  And nothing in the Fourteenth Amendment prevents these persons from being “natural born” citizens, if they are included in the original meaning of “natural born.”  And indeed that is exactly what I argued with respect to Senator Cruz: “natural born citizen” means born a citizen (whether by operation of the Constitution, a statute or common law).  So even if Senator Harris isn’t a constitutional citizen under the Fourteenth Amendment’s original meaning, she still was born a citizen and thus is a natural born citizen.

But in any event, Dean Eastman is wrong on the second step. He says that children of temporary visitors are not born “subject to the jurisdiction” of the United States because they are subject to the jurisdiction of the home country of the parents.  But (with narrow inapplicable exceptions) all persons within the territory of the United States are subject to its jurisdiction.  That’s the foundation of the international law of sovereignty, as true today as it was in the nineteenth century when the Fourteenth Amendment was ratified.  The 1865 version of Webster’s Dictionary defined “jurisdiction” in this sense as “the power or right of exercising authority,” and no one doubted that the sovereign had authority over essentially everyone and everything within its territory.  As Chief Justice Marshall put it in The Schooner Exchange (11 U.S. 116, 136 (1812)), specifically addressing temporary visitors:

The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. … When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction, and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance, and were not amenable to the jurisdiction of the country.

Thus temporary visitors and their children were “subject to” (“amenable to” in Marshall’s phrase) U.S. jurisdiction while within U.S. territory – though they might also be subject to the jurisdiction of another sovereign on the basis of the parents’ citizenship (depending on that sovereign’s citizenship law).  And obviously that’s in accord with the common sense understanding of anyone who’s traveled abroad – visitors are subject to local law, though they are also subject to their home country law.

Dean Eastman says that the Fourteenth Amendment requires birth subject to the exclusive jurisdiction of the United States.  But that’s simply not what it says.  And (as noted above) that wasn’t the rule before the Fourteenth Amendment, when the U.S common law of citizenship followed the English territorial rule.  There’s no evidence that people at the time of enactment thought the Amendment would depart from the existing common law rule as to the U.S.-born children of immigrants.  The point of the “subject to the jurisdiction” language was to exclude the children of diplomats and tribal Native Americans, who weren’t subject to U.S. jurisdiction even within the United States (the former because of diplomatic immunity and the latter because by treaties with the United States the tribes governed their own internal affairs).  Indeed, a colloquy in the Senate debates over the Amendment indicated that the Senators understood it would give citizenship to the U.S.-born children of non-citizen Chinese immigrants on the West Coast – a point later confirmed by the Supreme Court in United States v. Wong Kim Ark in 1898.

Dean Eastman attempts to avoid the effect of Wong Kim Ark by distinguishing between children of permanent residents (as in Wong Kim Ark) and children of temporary visitors – that is, between the Marco Rubio category and the Kamala Harris category.  But nothing in the Amendment supports this distinction.  Both categories are born “subject to the jurisdiction” of the United States to the same extent: they are born under U.S. sovereign authority.  Neither category is born subject to the exclusive jurisdiction of the United States – but the Amendment doesn’t require exclusive U.S. jurisdiction for citizenship.

In sum, the eligibility clause’s phrase “natural born citizen” adopts (at minimum) the meaning of “natural born” from eighteenth-century English law: born within sovereign territory (with narrow exceptions not applicable to current controversies).  The English rule indisputably applied to children of alien parents (including temporary visitors), and post-ratification evidence indicates that is how it was understood to operate in the United States.  The Fourteenth Amendment didn’t alter that rule, first because the Amendment addressed a different issue, and second because in any event the Amendment confirmed that persons born in U.S. territory are U.S. citizens at birth (with exceptions for persons like diplomats who aren’t under U.S. authority even within U.S. territory). Thus because Senator Harris was born in the United States while her parents were (albeit perhaps temporarily) subject to U.S. authority, she is a natural born citizen under the original meaning of the eligibility clause.


A Second Opinion re: Chiafalo v. Washington
David Weisberg

I disagree with Prof. Rappaport’s recent post on the “faithless electors” caseChiafalo v. Washington.  I consider myself a “textualist” rather than an “originalist” when it comes to constitutional interpretation, so I won’t venture a view as to whether or not Justice Kagan’s opinion “abuses originalist methods to reach a clearly incorrect result.” I contend only that the case was correctly decided, and that the result is completely consistent with the plain meaning of the constitutional text.  My analysis is, however, very different from that found in the Court’s opinion. 

The relevant provisions of the Constitution are set forth as follows by Prof. Rappaport:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate.

The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted . . . .

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

(I note that Prof. Rappaport doesn’t cite any word or phrase in these provisions that has changed its dictionary-meaning since ratification, so we probably would both agree that the meaning of the relevant words and phrases in 1788 was the same as today’s meaning.  As a textualist, that is the rebuttable presumption with which I begin.)

Prof. Rappaport says that the relevant constitutional provisions “suggest” that the electors’ votes are “not subject to state control,” and that key terms—“electors,” “vote,” and “ballot”—“suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.”  I think all the relevant language is consistent with the Court’s unanimous decision.

Consider jurors.  To qualify as a juror, a person must take an oath that he or she will render a true verdict according to the evidence and the law.  This means inter alia that the juror is duty-bound to follow the judge’s instructions with regard to the law.  The juror is not permitted to exercise any discretion with regard to those instructions; he or she may not, consistent with the oath, disregard or distort them.  Yet, jurors “vote,” and typically vote using “ballots.”  We do not consider those votes to be artificial or illegitimate merely because jurors are duty-bound to follow the judge’s instructions.  Even if the facts are not in dispute and the jury’s only task is to apply the law to the facts, one would not say that, because the jury is bound by the judge’s instructions, it did not truly vote and render a verdict.

We sometimes encounter clearly incorrect verdicts and even “jury nullification”—what happens if the jury’s verdict is inconsistent with the law?  Imagine a criminal case where the facts are undisputed; the only issue is the application of the law to those facts.  (This is not a mere theoretical possibility; e.g., every “test case” brought to challenge a statute is carefully structured to present undisputed facts.)  The jury either convicts or acquits.  If the jury convicts, and the trial court or an appellate court later decides that no reasonable juror could apply the law to the facts and vote to convict, the conviction is vacated.  Thus, the votes of “faithless” jurors—jurors who did not fulfill their oath to follow the judge’s instructions on the law—are effectively cancelled.  This is analogous to the remedies against faithless electors upheld in Chiafalo.

What happens if a jury acquits a defendant who clearly should have been convicted?  Nothing happens, but not because our legal system affirmatively endorses the validity of a jury verdict that is inconsistent with law.  Nothing happens because an entirely separate rule—the bar against double jeopardy—compels acceptance of a verdict even if it might be incorrect as a matter of law.  A jury might incorrectly acquit because it deliberately defied the judge, or didn’t understand the judge, or didn’t listen to the judge, or just wanted to go home; in any event, the defendant can’t be re-tried.  If we did not prohibit double jeopardy, an acquittal that was clearly inconsistent with the law presumably would be vacated, just like a wrongful conviction. 

The fundamental problem with Prof. Rappaport’s analysis, I think, is encapsulated in his statement that the relevant terms—“electors,” “vote,” “ballot”—“suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.”  But when someone pledges to act in a certain way if appointed to a special role, that person is not “controlled by someone else” when the pledge is honored; the person is entirely self-controlled in a literal sense.  He or she was perfectly free to refuse the appointment and the requisite pledge.  No elector (or juror) is ever forced to take the oath.  Indeed, a potential juror will always be excused for cause if she candidly discloses that she could not follow the judge’s instructions if those instructions compelled a verdict inconsistent with her religious or moral scruples.  In both cases—juror and elector—the pledge is freely given when the role is assumed, and the pledgor therefore is not “controlled” by anyone other than himself.

If I am correct in thinking that original-public-meaning originalists would agree that all the relevant words and phrases in the Constitution have the same meaning today that they had at ratification, then both originalists and textualists can be assured that, if my analysis is correct, the result in Chiafalo is consistent with the plain meaning of the Constitution and not any kind of a disaster.

One final, non-textualist, non-jurisprudential thought.  The framers of the Constitution were of the same generation as, and some were even numbered among, those Americans who in the Declaration of Independence “mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”  Is it credible that people of that era would be offended if an elector were required to honor a pledge he or she had freely given before assuming office?


Justin Rattey on Virtual Criminal Trials and Originalism
Michael Ramsey

Justin D. Rattey (J.D., Ph.D. Georgetown University) has posted Gap Filling: Assessing the Constitutionality of Virtual Criminal Trials in Light of Ramos v. Louisiana (Penn State Law Review, 2020) (7 pages) on SSRN.  Here is the abstract:

Court closures in response to the COVID-19 pandemic have led some to consider the possibilities of virtual jury trials, with at least one state court already conducting a virtual trial in a civil case. The Supreme Court’s recent decision in Ramos v. Louisiana, in which the Court held that jury verdicts must be unanimous, sheds light on the constitutionality of virtual trials in criminal cases. But the answer that Ramos suggests—that virtual criminal trials are unconstitutional—is difficult to square with the answer offered by constitutional theory. Though the author of the Court’s opinion in Ramos, Justice Neil Gorsuch, is ostensibly an originalist, originalist theory (reflected in the scholarship of, among others, Professors Larry Solum, Randy Barnett, and Jack Balkin) would seem to allow for virtual trials because that inquiry falls in the Constitution’s “construction zone.” The Constitution says nothing about whether jury trials must be in-person, affording legal actors greater (although not unlimited) latitude to adjust jury practices to take account of current circumstances. This essay compares the Ramos Court’s analysis to that of prominent originalists to preliminarily address whether virtual jury trials are constitutional. Additionally, through that comparison, this essay demonstrates the extent to which originalist theory has yet to succeed in shaping Supreme Court decision-making.

Interesting -- a more difficult issue for originalists than many evolving-technology cases, I think.  But I don't know that the issue is framed correctly here, at least for many originalists.  I assume no one thinks the Constitution requires a jury trial to look exactly like an eighteenth (or nineteenth) century jury trial.  But it must have the essential features of a historical jury trial.  That's the point of Ramos, I take it: unanimity is one of the essential features.  Is an in-person hearing also an essential feature?  That can't really be answered purely historically since there obviously weren't virtual options then.  But we can ask: does the virtual hearing change the dynamics so much that it's not really the same process?  I'm not sure of the answer but I think that's the originalist question.  The key point is that answering this question does not turn on an assessment of "current circumstances" (meaning the problems posed by the pandemic).