« July 2020 | Main | September 2020 »

35 posts from August 2020


More on Senator Harris and the Natural Born Citizen Clause
Michael Ramsey

At Newsweek, John Eastman (Chapman): Some Questions for Kamala Harris About Eligibility. From the core of the argument:

The language of Article II is that one must be a natural-born citizen [to be President]. The original Constitution did not define citizenship, but the 14th Amendment does—and it provides that "all persons born...in the United States, and subject to the jurisdiction thereof, are citizens." Those who claim that birth alone is sufficient overlook the second phrase. The person must also be "subject to the jurisdiction" of the United States, and that meant subject to the complete jurisdiction, not merely a partial jurisdiction such as that which applies to anyone temporarily sojourning in the United States (whether lawfully or unlawfully). 


Were [Senator] Harris' parents lawful permanent residents at the time of her birth? If so, then under the actual holding of Wong Kim Ark, she should be deemed a citizen at birth—that is, a natural-born citizen—and hence eligible. Or were they instead, as seems to be the case, merely temporary visitors, perhaps on student visas issued pursuant to Section 101(15)(F) of Title I of the 1952 Immigration Act? If the latter were indeed the case, then derivatively from her parents, Harris was not subject to the complete jurisdiction of the United States at birth, but instead owed her allegiance to a foreign power or powers—Jamaica, in the case of her father, and India, in the case of her mother—and was therefore not entitled to birthright citizenship under the 14th Amendment as originally understood.

(Via Ediberto Roman at Faculty Lounge.)

I disagree with Dean Eastman's view of the original meaning of the "subject to the jurisdiction" language of the Fourteenth Amendment, as I've written previously on this blog (and am writing at greater length in a forthcoming article).  But entirely apart from that, I think his analysis errs in equating the Fourteenth Amendment and the natural born citizen clause.

The first sentence of the Fourteenth Amendment is not a complete definition of who is a U.S. citizen at birth.  It it a statement of who has a constitutional right to U.S. citizenship.  In addition to constitutional citizens, Congress may create (and has created) categories of persons who are U.S. citizens at birth -- for example, persons born abroad with at least one U.S. citizen parent.  (It happens that I fall into that category).  Persons in this category are not U.S. citizens under the Fourteenth Amendment.  But they are U.S. citizens.

Whether persons in this category are natural born citizens is a different question.  That turns not on the original meaning of the Fourteenth Amendment but on the original meaning of the natural born citizen clause of Article II.  This issue was particularly prominent in 2016 in connection with Senator and presidential candidate Ted Cruz, who was born in Canada to a U.S. citizen mother.  Senator Cruz is not a constitutional citizen under the Fourteenth Amendment.  But quite arguably (and so I have argued) he is a natural born citizen under  Article II.  The Fourteenth Amendment does not define what it means to be a natural born citizen.  (Indeed, it's theoretically possible -- though I think not true in reality -- that someone could be a constitutional citizen under the Fourteenth Amendment and not be a natural born citizen).  The two provisions are simply describing different things.

So (assuming that Senator Harris' parents were not permanent residents when she was born) the question is whether persons in that category were considered natural born citizens when Article II was adopted.  I think the answer is clearly yes, for the reasons stated here.  But the Fourteenth Amendment has nothing to do with it.

RELATED:  Also at Newsweek, Eugene Volokh has a response to Dean Eastman, adapted from his earlier blog post on the issue. He doesn't take on the Fourteenth Amendment point, and I agree he doesn't need to.


Jack Balkin: Lawyers and Historians Argue About the Constitution
Michael Ramsey

Jack M. Balkin (Yale Law School) has posted Lawyers and Historians Argue About the Constitution (57 pages) on SSRN.  Here is the abstract:

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do.

According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions.

To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either.

The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it makes too much of history unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.


Jesse Merriam on Richard Hasen on Justice Scalia
Michael Ramsey

At Law & Liberty, Jesse Merriam (Patrick Henry College): A Justice—or a Court—of Contradictions? (reviewing Richard Hasen's The Justice of Contradictions: Antonin Scalia and the Politics of Disruption (Yale Univ. Press 2018)).  From the introduction: 

I really wanted to like and learn from Richard Hasen’s The Justice of Contradictions: Antonin Scalia and the Politics of Disruption, a book seemingly related to my interest in logical consistency and legal conservatism. But unfortunately, in this book I found little to like and even less to learn.

Although Hasen provides an accessible and at times compelling critique of the inconsistencies in Justice Scalia’s character and jurisprudence, Hasen’s analysis is mired by a significant blind-spot: He does not consider whether Justice Scalia is any more inconsistent than his colleagues. As a result, the book reads more like a polemical diatribe against Justice Scalia than a thoughtful examination of his judicial legacy and the value of consistency as a judicial virtue. Hasen’s focus on Justice Scalia as the justice of contradictions is particularly inapt, given Scalia’s expressed commitment to the Aristotelian notion that “[c]onsistency is the very foundation of the rule of law.”

After reading the book’s 178 pages, the attentive reader may find that he has learned more about Hasen’s own inconsistencies than those of his object.

And in conclusion:

This is a book of missed opportunities. The book could have focused on the importance of judicial consistency. Such a book would have criticized various justices, both left and right alike, for their derogations from this important ingredient of the rule of law. Hasen’s book, however, discusses the other justices as background characters who stray from their judicial duties only due to Justice Scalia’s insurmountable power.

Likewise, the book could have explored Justice Scalia’s inconsistencies in a more ideologically nuanced way, so as to include more consideration of how his approaches to originalism, textualism, and judicial power have produced liberal results. Hasen could have written a much more compelling account of Scalia’s inconsistencies if Hasen were less tethered to his particular ideological agenda.

Finally, the book could have probed further and explored what is behind the contradictions within the Supreme Court as an institution. Instead of simply blaming Scalia for the Court’s inconsistencies, Hasen could have acknowledged that these inconsistencies are more a function of the peculiarities of our political system than the peculiarities of particular justices. When we empower nine unelected, life-tenured lawyers to adjudicate the most mundane matters of local government, including decisions by law enforcement, school boards, and public libraries, we are going to see the inconsistencies of a multicultural nation of 330 million people reflected in their decisions.

Such discussions would have contributed to our legal discourse and perhaps even lessened our own inconsistencies. I cannot say that this book accomplishes either feat.


Is Kamala Harris a Natural Born Citizen?
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: Yes, Kamala Harris Is Indeed a Natural-Born Citizen.  From the introduction: 

I saw over the weekend that some people argue that Kamala Harris is ineligible to be Vice-President: apparently her parents weren't citizens when she was born, so the argument goes that she is thus not a natural-born citizen. (Under article II of the Constitution, only a "natural-born citizen" can be President, and the Twelfth Amendment provides that "no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.")

But "natural-born citizen" appears to have been the Framers' adaptation of the familiar English term "natural-born subject" (though with the "subject" of a monarch being changed to the "citizen" of a republic). And Sir William Blackstone, who immensely influenced the Framers' understanding of the law, expressly explained that "Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king." The test was place of birth, not the citizenship of parents.

Agreed.  I discussed this point in my article The Original Meaning of 'Natural Born' (20 U. Pa. J. of Const. L. 199 (2018)).  Although the main focus of that article is persons born abroad to U.S. citizen parents, in passing it makes clear that persons born in the U.S. -- with minor exceptions not relevant to Senator Harris -- are natural born citizens under the Constitution's original meaning, even if their parents were not citizens.  (This issue previously came up regarding Marco Rubio in 2016.)

Professor Volokh notes the main counterargument: 

Now the 1797 edition of the English translation of Emer Vattel's treatise on The Law of Nations (a book that had some influence on the Framers), did say that, "The natives, or natural-born citizens, are those born in the country, of parents who are citizens." But that was describing the European civil law rule, not the British common law rule; and in any event, the earlier editions appear to use the word "indigenes" (borrowed directly from the French original "Les Naturels, ou Indigènes") instead of "natural-born citizens."

Presumably the 1797 editor at least viewed the terms as roughly interchangeable. Still, I expect that the Framers, when they were writing the Constitution, mentally linked the "natural-born citizens" phrase more to the "natural-born subject" in Blackstone's very familiar explanation of the common law, rather than to "natives, or indigenes" in Vattel's somewhat less familiar discussion of the civil law.

This is also right, plus as I show in the article, there isn't much evidence that Vattel's approach was endorsed by prominent commentators in the U.S. in the ratification or post-ratification period.  And critically, Vattel did not (in the original French or in translations available to the Constitution's framers and ratifiers) use the phrase "natural born."  As Professor Volokh says, "natural born" was a term from English law and the founding generation in America no doubt recognized its source from Blackstone and other English authorities.


The Originalist Disaster in Chiafalo
Mike Rappaport

It is difficult to overstate how much of a catastrophe the “faithless electors” Chiafalo case is for originalism. It is not the case’s effect on the operation of the electoral college that is so disastrous. Rather, it is the reasoning of the Supreme Court’s decision. Chiafalo largely portrays itself as an originalist decision, but it abuses originalist methods to reach a clearly incorrect result. But the worst part is that not a single justice, including the originalists, discerned the original meaning, even though it should have been obvious to the entire Court.

The case concerns whether the states can influence or control the votes of the presidential electors (that is, the members of the Electoral College). The state of Washington imposed a $1,000 fine if an elector did not vote for the candidate that he had pledged to support. Colorado had a different law that allowed the state to remove an elector from his position if he did not vote for his pledged candidate. In a decision written by Justice Kagan for eight justices, the Court held that the states could pass either law. Justice Thomas agreed with the result but reached it through different reasoning.

A Worse Noel Canning

In some respects, Chiafalo resembles another originalist failure—the Noel Canning case, where Justice Breyer’s opinion for the Court adopted a broad interpretation of the President’s recess appointment power. As in Noel Canning, the Court ignored the obvious import of the constitutional language and relied upon practice to buttress its weak originalist case. But Chiafalo is much worse than Noel Canning for two reasons. First, the practice that Noel Canning relied upon was much older (arguably dating from 1823) than the practice relied upon by Chiafalo (which dates from the 1900s at the earliest and probably begins only in the 1980s).

Second, and more importantly, in Noel Canning the originalist justices refused to sign on to Justice Breyer’s obviously mistaken opinion, calling it out for the travesty it was. Instead, Justice Scalia wrote for four justices articulating the correct originalist interpretation. But in Chiafalo, all of the justices except for Thomas signed on to Kagan’s awful opinion. And no justice defended the obvious originalist position that was laid out for them on a silver platter by Harvard Law Professor Larry Lessig.

The Constitutional Text

The originalist evidence that the states cannot influence or control the electors is overwhelming. The Constitution establishes a two-step process for the electoral college. The state legislatures decide how the electors are to be appointed. And then the electors decide, based on their own judgment, which presidential candidate to vote for. (Congress also has a limited role.) The Constitution provides:

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

3: 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.

This description suggests that the states have the role of selecting the electors and the electors then vote based on their own judgment, which is not subject to state control. After all, the state is merely given the power to “appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Appointing an elector would not normally be understood to give authority to control how the elector votes.

Moreover, the provision refers to the persons appointed as “electors” who “vote” and do so by “ballot.” Each of these terms would normally suggest a person who makes the decision based on his own judgment rather than being controlled by someone else, such as the appointer.

Kagan’s Weak Arguments

Justice Kagan attempts to rebut these indications through some contrived and weak counterexamples. For example, she says that voters sometimes have “no real choice because there is only one name on a ballot (consider an old Soviet election, or even a downballot race in this country). Yet if the person in the voting booth goes through the motions, we consider him to have voted.”

But this misses the point. That someone is said to vote when there is only one candidate running does not mean that the person can also be said to vote when they are legally obligated to vote for one of a large number of candidates who are running. That Kagan can imagine these weird hypotheticals does not tell us about the meaning of the term “voter” in the context of the presidential election that the Constitution describes.

These points about the role of appointments and voters are strongly confirmed by other situations in the Constitution. 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.

Justice Kagan then argues that the Framers could have written into the Constitution that the states cannot control the electors’ votes, but did not do so. True, but so what? The question is what the words say, not whether the issue could have been made even clearer in a longer document. As progressives like Kagan love to repeat, Chief Justice Marshall told us it is a constitution we are interpreting, not a code. That line is often misinterpreted as suggesting that the Constitution can be updated to reflect modern circumstances. It means nothing of the kind. Rather, it means that the Constitution is a short document and therefore we should not expect the level of detail that a code provides. Once the Constitution suggests that electors can vote at their discretion, we should not expect a repetitive reminder that the states cannot control them.

Justice Kagan also dismisses evidence from Alexander Hamilton and others that they believed the electors would enjoy independence, because Hamilton was not able to reduce his “thoughts about electors’ discretion to the printed page” in the Constitution. Again, this is weak. No one is arguing that Hamilton’s belief here is binding like constitutional text. Rather, the point is that Hamilton, who is normally considered a persuasive contemporaneous interpreter of the Constitution, apparently believed that the Constitution protected the independence of the electors. Sure, Hamilton could be wrong, but this evidence of the meaning of the language is hardly to be dismissed as irrelevant or unimportant.


Finally, the Court relies on what it deems to be practice in the form of state customs and laws concerning the electors, but yet again its arguments are feeble. The Court notes that relatively early on electors announced who they would vote for. But that provides no support for laws that constrain elector discretion. People running for office typically make campaign promises, but no one believes that the government can legally prevent the elected candidate from changing his mind or breaking his promise. Indeed, when elections were held for delegates to the ratification conventions, antifederalists who opposed the Constitution received more support than federalists who supported it, but our charter was enacted because a significant number of the antifederalists changed their minds at the conventions.

The states did not even require pledges until the 20th century and such pledges are hardly a precedent for an enforcement procedure to ensure the electors follow their pledges. These enforcement procedures were not enacted in the small number of states that now have them until the 1980s. This modern practice is neither evidence of the original meaning nor a longstanding custom that commands serious consideration.

Overall, the case for elector independence is overwhelming. While I do not expect the four progressive nonoriginalist judges to follow the original meaning, I do expect the originalists to get it right. I am willing to give Justice Thomas a bit of a pass, because he was pursuing his own longstanding theory, albeit one that was misapplied in this case. But what explains the vote of Justice Gorsuch? I believe that Justice Gorsuch has been a great originalist justice so far, although I have disagreed with some of his opinions. But his vote here is an enormous stain on his record. If Chiafalo is the best that originalists can do, that is a damning indictment. Happily, I believe that originalists can and usually do much better.

Jeffrey Goldsworthy: Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism
Michael Ramsey

Jeffrey Denys Goldsworthy (Monash University - Faculty of Law) has posted Legislative Intentions in Antonin Scalia’s and Bryan Garner’s Textualism (Connecticut Law Review, forthcoming) (23 pages) on SSRN.  Here is the abstract: 

In their book Reading Law (2012), the late Justice Antonin Scalia and his co-author Bryan Garner advocate “pure textualism”. But they reject “hyperliteralism”, which ignores context, including statutory purpose, and cannot accommodate implications. Their textualism is motivated partly by normative concerns about judicial lawmaking and the rule of law, and partly by their denial that legislatures can have any intentions other than to enact particular texts. They call for “further uses of intent in questions of statutory interpretation [to] be abandoned.”

I argue that their denial that legislatures can have any intentions other than to enact texts would, if rigorously adhered to, render their version of textualism unviable. It is inconsistent with context and purpose being used to (a) dispel ambiguities, (b) correct scrivener’s errors, (c) reveal presumptions or background assumptions that qualify literal textual meanings, (d) reveal most kinds of implicit and implied content, and (e) resolve conflicts between the interpretive canons. It would entail hyperliteralism.

That is no doubt why they do not rigorously adhere to that denial. To the contrary, in accepting that context and purpose can be used to do all these things, they frequently rely on legislatures having intentions in addition to merely enacting statutory texts. These include: (a) intentions that statutory language has particular meanings, (b) intentions that those meanings communicate particular norms, and (c) intentions (called purposes) that those norms should achieve particular objectives.

Despite their theoretical dismissal of substantive legislative intentions as non-existent, their actual interpretive practice confirms the intentionalist thesis that sensible interpretation of enacted laws necessarily presupposes the existence of such intentions, and endeavours to reveal and clarify them.

This paper will appear in a Festschrift in honour of Professor Richard Kay, in (2020) 52 Connecticut Law Review.


Brian Slocum & Stefan Gries: Judging Corpus Linguistics
Michael Ramsey

Brian G. Slocum (University of the Pacific - McGeorge School of Law) and Stefan Gries (UC Santa Barbara - Department of Linguistics) have posted Judging Corpus Linguistics (Southern California Law Review, 2020) (19 pages) on SSRN.  Here is the abstract:

The practice of legal interpretation has long sought legitimization through devices that seek to distance interpretations from the personal predilections of judges. Most notably, with the rise of textualism, courts have habitually relied on dictionary definitions to provide word meanings that are external to a judge’s own intuitions. Similarly, some scholars and judges have recently argued that corpus linguistics can provide especially powerful and objective information to judges about the ordinary meanings of statutory and constitutional texts. For instance, in their influential article, Judging Ordinary Meaning, Thomas R. Lee and Stephen Mouritsen argue that courts should “import” into the law of interpretation computer-aided means (primarily, corpus analysis) of determining “the sense of a word or phrase that is most likely implicated in a given linguistic context.” In the view of Lee and Mouritsen, statutory interpretation is an “empirical question” (the authors assert this more than forty times), which makes it natural that courts should rely on scientifically-based interpretive sources such as corpus linguistics.

The potential judicial adoption of interdisciplinary knowledge and techniques from fields such as linguistics is intriguing, and the resulting discussions from such proposals will enhance both the theory and practice of legal interpretation. Nevertheless, anyone advocating for the judicial adoption of a significant and novel interpretive source bears the burden of offering a compelling explication of the interpretive source and its role within the structure of interpretation. This demonstration should establish that the new interpretive source offers some comparative advantage to existing interpretive sources and is feasible in the sense that judges can competently use it. The advocate must therefore offer a compelling theory of how the interpretive source fits into existing processes of interpretation and explain whether the new interpretive source requires a new way of viewing those processes. With corpus linguistics, some of the issues that should be addressed therefore include:

(1) how corpus linguistic analysis is relevant to some objective of interpretation currently identified by judges, such as the determination of ordinary meaning;

(2) whether corpus linguistics should displace long-standing interpretive sources, such as dictionaries and textual canons;

(3) the extent to which corpus linguistics can take account of the relevant context of a statutory provision;

(4) to what extent determining statutory meaning is an empirical endeavor (with or without corpus linguistics); and

(5) whether judges have both the technical ability to conduct competent corpus analyses and sufficient linguistic expertise to evaluate the raw data and make judgments of the kind made by trained linguists.

In this short essay, in the spirit of offering general concerns about corpus analysis and legal interpretation, we largely focus on Lee and Mouritsen’s efforts in addressing the above issues. We argue that Lee and Mouritsen’s conceptualization of the potential role for corpus linguistics within legal interpretation is inadequate and underestimates the difficulty of judicial adoption of corpus analysis methods. Corpus analysis can provide useful information about the functioning of language, but it is crucial to neither understate the role of context in determining statutory meaning nor overstate the potential contribution of corpus analysis to legal interpretation.

For even harsher criticism of corpus linguistics, see this paper by Donald Drakeman: Is Corpus Linguistics Better than Flipping a Coin?


Cass R. Sunstein & Adrian Vermeule on the Unitary Executive
Michael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School) and Adrian Vermeule (Harvard Law School) have posted The Unitary Executive: Past, Present, Future (forthcoming, Supreme Court Review) (27 pages) on SSRN.  Here is the abstract:

Under the U.S. Constitution, is the executive branch unitary, and if so, in what sense? For many decades, there has been a sharp dispute between those who believe in a strongly unitary presidency, in accordance with the idea that the president must have unrestricted removal power over high-level officials entrusted with implementation of federal law, and those who believe in a weakly unitary presidency, in accordance with the view that Congress may, under the Necessary and Proper Clause, restrict the president’s removal power, so long as the restriction does not prevent the president from carrying out his constitutionally specified functions. Both positions can claim support from the original understanding of relevant clauses; both can claim to keep faith with constitutional commitments in light of dramatically changed circumstances, above all the rise of the modern administrative state. In Seila Law v. Consumer Financial Protection Bureau, a sharply divided Court enthusiastically embraced the strongly unitary position, in an ambiguous opinion that might be read to preserve the constitutionality of independent multimember commissions, but that also left a great deal of room for constitutional challenges to such commissions in their present form. The Court’s analysis purports to be rooted in the original understanding of the constitution, and not implausibly so; but the Court relies so heavily on abstract principles, such as “liberty” and “accountability,” that its analysis is not easily distinguishable from a dynamic constitutionalism suffused with political morality. The Court’s holding and analysis can thus be seen as a direct outgrowth of modern anxiety, rooted in structural concerns, about the threats posed by a powerful, discretion-wielding administrative apparatus, and a belief that presidential control is an essential safeguard.

(Via Larry Solum at Legal Theory Blog, who says: "Highly recommended.  Download it while it's hot!")

RELATED: At Law & Liberty, David Alves & Flagg Taylor: The Court’s Incoherence on Executive Removal.


Aaron Coleman on the Anti-Federalists and the Judiciary
Michael Ramsey

At Law & Liberty, Aaron N. Coleman (University of the Cumberlands -- History): Anti-Federalists and the Roots of Judicial Oligarchy.  From the introduction:

[D]espite all the evidence to the contrary, conservatives continue to tout Hamilton’s assurances that, with the right people in place, the judiciary would prove to be the “least dangerous branch” because it had neither “force nor will,” while the absence of the sword and the purse were to render the Court powerless. History, however, has not been so sanguine to Hamilton’s assurances. What makes this all the more frustrating is how, rather than push back against these aberrations, conservative groups work within the progressive paradigm of judicial supremacy. They continually fail to get the decisions they want, and the supposedly “right person” fails time and again to live up to expectations (likely because every appointment is yet another elite from another ivy-league law school). All this is compounded by the guilt and shame that comes from effectively embracing the progressive elements that have so grotesquely misshapen the Constitution.

This bleak picture of our modern constitutionalism should not surprise anyone who has read the Anti-Federalists. Their warnings on the loss of self-governance and liberty through the Constitution’s general vices—consolidation and potential oligarchy—and the vices of the judiciary in particular, should appear to modern readers, those willing to listen at any rate, as prophetic and prescient.

And in conclusion:

After the Anti-Federalists lost the political debate in 1788, most did not withdraw from public life. They accepted the Constitution’s federal structure and worked tirelessly—and, to their opponents, obnoxiously—within the state and federal governments to preserve their local lives and check and curb its consolidationist and oligarchic tendencies. To put it another way, Anti-Federalists did not despair; they did not condemn the Constitution as illegitimate, nor did they advocate for new modes of jurisprudence which only exacerbate the problem of judicial supremacy. While the Anti-Federalist attitude persisted, consolidation and judicial oligarchy, while not successful in every instance, were held at bay. Only after the passing of that mentality, did their prognostications of the Constitution begin to come true. 

In another recent essay on Law & Liberty, the picture heading the text shows a man holding a large cross and seemingly praying before the Supreme Court. The picture captures the beleaguered state of our constitutional order. The man sees himself as living in a national society that increasingly believes his religious beliefs are outmoded and dangerous, even as he and most of his neighbors attend church regularly; bereft of having his state governments deal with this issue; unknown to his Congressman or Senators; and, unable to move a cold and distant bureaucracy, his last remaining method of participation, and his last hope, was to beg for divine intervention upon five ivy-league educated, unelected, life-tenured lawyers. This is not how a healthy compound federal republic bound by the rule of law operates. It is high time for conservatives to accept that our long embrace of the Constitution’s vices—vices the Anti-Federalists warned about—has led to our celebrating a republic that remains one in name only; the reality is something vastly different.

Before we consign the Founder’s regime to memory and whispered longings, conservatives must first embrace—and actually listen to—those who best understood the Constitution’s vices. Conservatives must begin the arduous but necessary process of teaching what the Anti-Federalists knew: that free republicans do not live in a homogenized, consolidated nation. Instead, they respect the sovereignty of the individual state, actively participate in the exercise of its good government, practice the republican virtues of courage and vigilance, and maintain a healthy jealously over their rights. Once conservatives acknowledge that the Anti-Federalists were right about consolidation leading to oligarchy (in our case, oligarchy by judiciary), they can begin to understand how those same Anti-Federalists hold the key to ending their reign.


Christine Kexel Chabot: The Lost History of Delegation at the Founding
Michael Ramsey

Christine Kexel Chabot (Loyola University Chicago School of Law) has posted The Lost History of Delegation at the Founding (46 pages) on SSRN.  Here is the abstract: 

The Supreme Court is one decision away from bringing the administrative state to a grinding halt. Justice Gorsuch’s dissent in Gundy v. United States raises grave questions about the constitutionality of countless regulatory statutes in which Congress has delegated significant policymaking authority to the executive branch. Now that Justice Kavanaugh has signaled his general agreement with this approach, Justice Gorsuch’s dissent may soon become the majority. But history does not support Justice Gorsuch’s argument that, as an originalist matter, Congress cannot delegate significant policymaking authority.

This Article demonstrates that our Republic began with a completely different understanding of Congress’s constitutionally prescribed role. Alexander Hamilton, James Madison, and the First Congress all approved of legislation that delegated highly consequential policy decisions to the executive branch. This Article adds previously overlooked but critical historical evidence of constitutional debates leading up to these delegations, as well as the significant policies that the executive branch determined in Congress’s stead. After Alexander Hamilton proposed legislation delegating Congress’s Article I, section 8 power to “borrow Money” and “pay the Debt,” James Madison and other members of the First Congress debated this delegation and concluded that it was constitutional. The First Congress ultimately awarded President Washington and executive officers serving on the Sinking Fund Commission borrowing and payment authority that implicated financial policy decisions of the utmost importance to our national economy. The First Congress also delegated its power under the Intellectual Property Clause when it passed a bare-bones patent act that required executive officers including Thomas Jefferson to establish important substantive and procedural rules of patent law. Hamilton, Madison, and the First Congress never understood the Constitution to require that Congress decide all of the important policy questions, and the Supreme Court will create an unprecedented constitutional requirement if it requires Congress to start doing so now.

(Not to be confused with Delegation at the Founding [by Nicholas Bagley and Julian Davis Mortenson] or Nondelegation at the Founding [by Ilan Wurman].)