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31 posts from September 2020


The Scalia and Ginsburg Vacancies: Can McConnell’s Actions Be Justified?
Mike Rappaport

This essay is not about originalism, but about the norms governing Supreme Court appointments.  But since it concerns the possible appointment of an originalist justice, I thought I would put it up. 

Senate Majority Leader Mitch McConnell’s statement that a vote would be scheduled on a Trump nominee to fill the Ruth Bader Ginsburg vacancy has occasioned strong criticism from Democrats and some others as being inconsistent with his stance in 2016 that the new President should fill the Scalia vacancy. But this claim that McConnell’s actions cannot be reconciled is mistaken. A reasonable case can be made that McConnell’s actions are a legitimate exercise of the prerogatives normally accorded a Senate majority.

Debate over McConnell’s statements has turned to some extent on what he exactly said in 2016. Did he say that a vacancy that occurs in an election year should be filled by the next President? Or did he say that a vacancy, when the President and the Senate are controlled by opposite parties, should be filled by the next President? While a careful assessment of what McConnell said is important to determining whether his pronouncements are consistent, it is less relevant to my concern here: whether a reasonable case can be made for holding the seat open in 2016 and not doing so in 2020. 

The obvious objection to McConnell’s proposed action is that the justification for holding the seat open in 2016 was that democracy required the new President to fill the seat. And if democracy required that in 2016, it does so again in 2020. The possible McConnell response—that the Senate majority was from a different party than the President in 2016, but not 2020—is irrelevant, because the argument from democracy applies irrespective of which party controls the Senate.

But this objection is mistaken. In the American system, the Senate majority has traditionally enjoyed various powers that it is entitled to exercise. It gains these powers by winning elections in which the voters place the responsibility to govern the legislative house in the majority party. 

The Senate majority’s power is accepted even when that majority takes highly partisan actions.  Democratic Senate majority leader Harry Reid chose to eliminate the filibuster for circuit court judges in 2013 to allow President Obama to appoint three judges to the D.C. Circuit (often said to be the nation’s second most important court), thereby securing control of the court for the Democrats. Few argued that this action violated constitutional norms (as opposed to being imprudent), even though many Republican judges had previously been filibustered. This partisan act was deemed within the prerogatives of the Senate majority.

While the Senate majority’s power to schedule hearings and votes on nominees is largely accepted, that does not mean that this power is unlimited. It is easy to imagine exercises of this power that would violate accepted norms. For example, if an election resulted in a Democratic President and a Republican Senate majority, it is obvious that the Republicans would not be entitled as a matter of political norms to refuse to hold a hearing or a vote on the President’s Supreme Court nominee for the entire four years of the President’s term. Such an action would deprive the country of a 9 member court for an extended period. Thus, there are limits on the Senate’s power that are rooted in the overall functioning of the political system.

Precisely what this specific limit should be—what the appropriate trade-off between Senate discretion and Supreme Court functioning should be—is not obvious. The norms governing this situation are not clear at the margins. There are, however, some focal points that arise from history and other sources. One is a vacancy that arises at the end of the Supreme Court term in June during a presidential election year. Another is a vacancy that arises within the year that the presidential election will occur. I assume that virtually all observers would agree that a vacancy at the end of June is too late to require the Senate to act. Had Scalia died on June 30, 2016, the criticisms of McConnell would not have been very loud.

Obviously, there was disagreement about McConnell’s decision to keep the Scalia vacancy unfilled even though it arose during the election year (in February of 2016). While the Democrats believed the seat was left open too long, Republicans argued that a vacancy occurring during the election year arose close enough to the election to permit it to remain unfilled. In my view, McConnell’s position was a reasonable interpretation of the norm, albeit one that was contestable. By contrast, if one were to keep a vacancy open that occurred in the year prior to the presidential election, that would be a bridge too far. There would then be no obvious stopping point as to when the vacancy could arise and that would leave the Supreme Court vulnerable. Thus, McConnell’s decision keeping the Scalia seat open was reasonable, even though some might reasonably disagree with it.

If McConnell’s decision was reasonable in 2016, then how can his 2020 decision to hold a vote before a new President takes office be justified? The answer is clear: it is one of the prerogatives of the Senate majority to do so. While the Senate could hold the seat open in 2016, it was not required to do so. Similarly, the Senate majority can hold the seat open or allow it to be filled in 2020, as it deems the public interest to require.

One objection to my analysis is that it would lead to court-packing by the Democrats. If the Democrats come to control the House, the Senate, and the Presidency in 2021 (or in the future), then Trump’s filling of the Ginsburg seat may lead them to expand the size of the Supreme Court and fill it with Democratic appointees. While the Democrats might choose to court pack, it would not be justified under current norms. Court-packing violates existing norms, having been rejected by all parties (until recently) from at least the New Deal. There are strong reasons for this rejection. Most importantly, there is no obvious focal or stopping point regarding court-packing. If the Democrats choose to add three members to the Court in 2021, the Republicans could then, if they gained control of the House, Senate, and presidency, add three more members in 2025. This would soon undermine the Supreme Court’s role as a nonpolitical decisionmaker in our system—and would do so much more than would having an eight-member court for four years.

In the end, one might criticize our system for allowing Senate majorities to exercise so much power. Of course, while there are disadvantages to significant majority party power, there are also advantages. One could have an interesting debate about such matters. But whether or not our existing system is optimal, Senate majorities do have such power and they often exercise it to benefit their party.

Steven Semeraro: Bostock’s Misperceived Quest to Distinguish Title VII’s Meaning From the Public’s Expectations
Michael Ramsey

Steven Semeraro (Thomas Jefferson School of Law) has posted We’re All Originalists Now . . . Or Are We?: Bostock’s Misperceived Quest to Distinguish Title VII’s Meaning From the Public’s Expectations (Hofstra Law Review, forthcoming) (70 pages) on SSRN.  Here is the abstract:

Two principal tenets underlie originalism-textualism: First, judicial interpreters of a statute should not use modern values to supplant original meaning because the law should change only through democratic processes. Second, original meaning is limited to the intersubjective original understanding that a reasonable reader would draw from a statute’s text. Meaning does not include anyone’s extratextual subjective expectations about how a statute should apply.

The divided Bostock Court’s decision that Title VII prohibits sexual orientation and gender identity discrimination reveals a contradiction between originalism-textualisms dual tenets. The mid-1960s public’s expectations about how Title VII would apply to sexual orientation and gender identity discrimination are both (1) irrelevant to the original public meaning (as the majority held) and (2) so sacrosanct that an interpreting court must apply them no matter how horribly wrong the prevailing views of that period were (as the dissenters contended).

Rather than grapple with this contradiction, the Justices simply privileged one tenet or the other. Despite a great deal of thrust and parry, their opinions never engaged the core disagreement over how an interpreting court should distinguish intersubjective original public meaning from individuating subjective expectations about how to apply the statute.

This issue goes to the heart of originalism and demands more attention. Originalist scholars reference the question, but their theoretical analysis does not resolve concrete cases in which an interpreting court tries to avoid imposing modern values while simultaneously refraining from illegitimately converting then-prevailing subjective desires and prejudices into binding law.

The scholarly originalist community’s initial negative reaction to Bostock v. Clayton County, Georgia, suggests that the fear of modern values gaining hold through anti-democratic means is the more important tenet. But given the dramatic and definitive change in the prevailing views on homosexuality and gender identity between Title VII’s adoption and today, the greater threat appears to be that unwritten prejudices of the past would override intersubjective meaning and illegitimately bind future generations.

Two methods could potentially resolve this contradiction within originalism-textualism. First, Justice Kavanaugh’s use of linguistic categories in his Bostock dissent can be read as an attempt to resolve the conflict by using how we talk as a stand-in for objective meaning. This approach fails. Although the existence of linguistic categories is objective, the categories arise subjectively. Allowing the way people talk to blur the meaning of a clear text would undermine both of originalism’s tenets by allowing modern judges to (1) change the meaning of objective text, perhaps to conform to their own values, by selecting among linguistic categories, and (2) imbue extratextual subjective beliefs held only by some people with the authority to bind future generations.

Second, and more promising, originalist scholars have provided hypotheticals in which an interpreting court could legitimately take account of modern learning. If the original populous made a mistake of objective fact, originalists have acknowledged, a court may correct that mistake when interpreting the text’s original meaning. But this window to modern learning is strictly limited. It only applies to factual errors. An interpreter may not consider changes in the policies that people believe best advance societal interests. Since the relevant changes under Bostock’s facts between 1964 and today relate to our subjective views about homosexuality and gender identity, rather than factual errors, originalists appear to have concluded that the interpretive window to modern learning should have remained closed.

Aspects of language theory show, however, that changes in values can be indistinguishable from mistakes of fact. No hard break separates these categories for us. Whether a particular issue is designated one or the other is a choice we make. Not all disputes that we call factual can be resolved definitively. Yet, we can agree that certain concepts that we call values are true with an extremely high degree of consensus. Whether an interpreting court should open the interpretive window to modern learning should turn on the definitiveness of the mistaken nature of the public’s original expectations, not whether a mistake is delineated as one of fact or value. To be sure, close cases will pose interpretive challenges over the definitiveness of the mistake. But such challenges are nothing new, and Bostock is not a close case.

To avoid an irresolvable contradiction between its principal tenets, originalism must accept that values can be mistaken in the same way as facts. The interpretive window should open to correct mistaken values when they have changed in a way, as in Bostock, that is as definitive as what we normally think of as a mistake of objective fact.


Daniel Johnson on Paul Lay on Cromwell
Michael Ramsey

At Law & Liberty, Daniel Johnson: Cromwell’s Revolution (reviewing [favorably] Paul Lay, Providence Lost: The Rise and Fall of Cromwell's Protectorate (Apollo, 2020 forthcoming)).  From the introduction:

After a revolutionary war against a tyrannical king, a commonwealth is proclaimed. To preserve the rule of law in the absence of a traditional hierarchy, the elected representatives of the republic adopt the novel device of a written constitution. The victorious general is made head of state. In recognition of his providential role and in order to ensure continuity, the nation’s founding father is offered the crown. He turns it down.

No, this is not the story of the American Revolution, but that of its English precursor more than a century earlier. It is part of the mythology of the United States that almost everything about its foundation was unprecedented. But this is not so. The mindset of the American Founding Fathers was deeply conservative and, unlike most of their present-day successors in Congress and the White House, they were well-versed in English history. During the period sometimes known as the Interregnum, between the execution of Charles I in 1649 and the Restoration of his son Charles II in 1660, much was anticipated in thought and deed of what would later transpire in the conflict between the American colonies and George III. Both sides drew on their own interpretations of that era in what may be seen as the third act of the drama, following the English Civil War and the Glorious Revolution of 1688, in which an epic battle of ideas was fought out over almost 150 years.

And here is the book description from Amazon:

This history explores a year that fell within one of the least understood periods in British history—the Interregnum between the execution of Charles I and the restoration of Charles II—and reclaims it as one of the most politically exciting and culturally creative eras of European history. Far from being the dreary Puritan society of royalist myth, the Interregnum was one of the most intellectually thrilling times in British history. This was the crucible in which modern British thought—inquiring, iconoclastic, and creative—was forged, and it marked the foundation of modern British democracy: pluralistic, inclusive, and based on a people's charter to rule.


One Additional Point Regarding a Vice President’s Tie-Breaking Vote
David Weisberg

Prof. Ramsey has commented on Prof. Laurence Tribe’s opinion that the Constitution permits the vice president to break Senate ties only with regard to proposed legislation and not with regard to appointments, including appointments to the U.S. Supreme Court.  Prof. Ramsey isn’t persuaded; nor am I.  He states: “[Article I, Section 3] does not say that the Vice President has this [tie-breaking] voting power only as to Article I matters.  Rather, the Vice President has this voting power whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates -- not just as to powers in Article I, but generally.”  I agree completely.

It is also instructive to consider the relevant provisions of Article II, Section 2, in a slightly larger context:

[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court[.]

The “advice and consent” role of the Senate with respect to treaties includes the explicit provision that “two thirds of the Senators present concur.”  There is no congruent provision, with respect to appointments, that “a majority of the Senators present concur.”  But that provision is precisely what one would expect if the v.p. is to have no tie-breaking vote with appointments.  Are we to believe that the drafters simply forgot that, in Article I, they had given the v.p. a facially unqualified tie-breaking vote? 

Thus, if the drafters meant to limit the v.p.’s tie-breaking vote only to proposed legislation, thus excluding appointments, there were two different places—in Art. I, Sec. 3, which could have stated: “…but shall have no Vote, unless they be equally divided, with respect to a Bill,” or words to that effect; in Art. II, Sec. 2, which could have stated: “…and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court,… provided a majority of the Senators present concur”—where that explicit limitation would very naturally fit.  No such limitation appears anywhere.  The only reasonable conclusion is that the v.p. may preside and break ties with respect to both legislation and appointments.

Are Limited Terms for Supreme Court Justices Constitutional?
Michael Ramsey

From Kalvis Golde at SCOTUSblog: House Democrats to introduce new bill for Supreme Court term limits.

With the debate over Supreme Court reform taking center stage in the 2020 election after the passing of Justice Ruth Bader Ginsburg, three members of the House of Representatives on Tuesday will introduce a bill to establish term limits for Supreme Court justices.

Democrats Ro Khanna (Calif.), Don Beyer (Va.) and Joe Kennedy III (Mass.) unveiled the bill, the Supreme Court Term Limits and Regular Appointments Act, on Friday. If passed, the act would institute regular appointments to the Supreme Court every two years, with new justices serving for nonrenewable 18-year terms. After 18 years, appointees would become “senior justices” able to temporarily rejoin the court in the event of an unexpected vacancy. Although the current eight justices would be exempted, the two-year appointment cycle would take effect immediately, without waiting for them to retire.

The consensus of legal scholars seems to be that this is unconstitutional if done by statute.  I'd like to be a contrarian and say otherwise, but I can't.  Indeed, I think this is another example (as with the Vice President's tie-breaking power on appointments, discussed here) where the Constitution's text is clear, if read carefully and without a view to evasion.

Article III, Section 1 provides: 

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour...

I'll assume here that the "good Behavior" standard means the judges hold their offices for life unless impeached and removed under Article II, Section 4.  (My colleague Steve Smith and my sometime co-author Saikrishna Prakash have an interesting article arguing that the original meaning of this phrase is something different, but it's not relevant to the present debate).  So, as a starting point, a simple term-of-years for Supreme Court Justices is a constitutional non-starter.

The Khanna et al. proposal apparently tries to get around that restriction by redefining the "office" of Supreme Court Justice as hearing cases for 18 years (I'll call it phase 1) and then serving as a backup "senior Justice" in case of temporary vacancies (phase 2).  Rotating from phase 1 to phase 2 wouldn't be a removal from office, it is argued, because the office, by definition, includes both phases of service.

This doesn't work for me.  Article III, Section 1 creates "Offices" of "Judges ... of the supreme and inferior Courts." Necessarily, holding the "Office" of judge of the supreme Court means acting in a judicial capacity as a member of the supreme Court, not simply having the title and filling in occasionally.  This constitutionally defined office can't be redefined by statute to mean the office of acting in a judicial capacity as a member of the supreme Court for a while and then doing something else for the balance of one's tenure.  (Otherwise, Congress could define the "Office" of Supreme Court Justice as serving as a Justice for 5 years and then serving as dogcatcher in East Outback, Alaska, for the rest of the time).  And Article III, Section 1 goes on to say that the judges shall hold "their Offices" -- that is, their offices as members of the Supreme Court -- during good behaviour.

Side point #1:  Apparently (based on immediate post-ratification practice) Congress can, however, add additional duties to the office of Supreme Court Justice (such as riding circuit).  That seems a little problematic.  Could Congress say that, in addition to the duty of serving as a member of the Supreme Court, the office of Supreme Court Justice includes the duty of serving (in alternate months, perhaps) as dogcatcher in East Outback, Alaska?  This may be a case where one has to let post-ratification practice override intuitions.  (And it would be a way to encourage Justices to retire early!)

Side point #2: The argument is, oddly, a little harder with regard to lower court judges.  Since the office of lower federal court judge is created by statute, couldn't Congress use its office-creating power to create an office that has primary adjudicatory powers in a lower federal court for only a set term, and then only temporary vacancy-filling powers after that (like the Khanna proposal does for the Supreme Court)?  But on reflection, I think not.  The Constitution doesn't empower Congress to create offices that include partial service on the lower courts.  It empowers Congress to create offices that are service on the lower courts.  If Congress chooses to create such offices, then the persons appointed to those offices hold them (that is, the offices of service on the lower courts) during good behavior.  Congress can give all or none of that office, but it can't give only part of it.

Side point #3: Steve Calabresi had this op-ed last week in the New York Times calling for a constitutional amendment establishing Supreme Court term limits.  Ilya Somin comments here at Volokh Conspiracy (arguing along the way that statutory term limits are unconstitutional).


Ed Whelan on Judge Barrett on Stare Decisis
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Judge Barrett on Stare Decisis.  The post highlights these two key articles on the topic by Judge Barrett:

Precedent and Jurisprudential Disagreement, 91 Texas L. Rev. 1711 (2013)

Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017)

On the first:

In “Precedent and Jurisprudential Disagreement,” Barrett responds to academics who “have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.” In particular, she argues that “one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court.” She also argues that stare decisis is just one of many features of our judicial system that promotes doctrinal stability.

Look for Barrett’s critics to obscure the fact that Barrett is defending the Court’s existing “weak presumption” of stare decisis, not calling for a weaker version.

On the second:

In “Originalism and Stare Decisis,” written after Justice Scalia’s death, Barrett explores Justice Scalia’s approach to precedent and the question whether stare decisis is compatible with originalism. She disputes the claim that originalism without stare decisis would produce chaos: “This threat is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.” In particular, a “combination of rules—some constitutional, some statutory, and some judicially adopted—keep most challenges to precedent off the Court’s agenda.”


Judge Barrett on Originalism
Michael Ramsey

At NRO Bench Memos, Ed Whelan collects some quotes from Judge Amy Coney Barrett on textualism and originalism, particular from these two articles:

Assorted Canards of Contemporary Legal Analysis: Redux, 70 Case Western L. Rev. 855 (2020)

Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2016) (with John Copeland Nagle)

At PJ Media, Tyler O'Neil, in a post titled 5 Things to Know About Amy Coney Barrett, asks "[I]s she an originalist?" and embeds a recording of her talk last year at Hillsdale College, "A Conversation with Amy Coney Barrett."  (Via Instapundit.)


Can the Vice President Break a Tie on Appointments? (with Comment from Andrew Hyman)
Michael Ramsey

In the Boston Globe, Laurence Tribe (Harvard) makes an originalist case that the Vice President cannot break ties on appointments votes.  It's an interesting issue but I am not persuaded. 

He begins:

While the vice president has the power to cast a tiebreaking vote to pass a bill, the Constitution does not give him the power to break ties when it comes to the Senate’s “Advice and Consent” role in approving presidential appointments to the Supreme Court.

You don’t have to take my word for it. Alexander Hamilton said the same thing way back in 1788, in Federalist No. 69: “In the national government, if the Senate should be divided, no appointment could be made.” ...

Well, I don't always take Alexander Hamilton's word for things either, although Hamilton is persuasive evidence of original meaning when he gives a persuasive account.  Federalist 69, however, doesn't contain any supporting reasoning on this point, so it's unclear why Hamilton thought this was so.  Federalist 69 isn't a description of the Vice President's powers.  It's a wide ranging description of the President's powers, touching on appointments only briefly, and not mentioning the Vice President.  It seems as likely that Hamilton ("writ[ing] like he was running out of time") simply forgot about the Vice President's role. I would count this as some evidence, but not at all conclusive.

Professor Tribe next says:

Consistent with Hamilton’s understanding, as two thoughtful recent scholarly analyses have pointed out, no vice president in our history has ever cast a tiebreaking vote to confirm an appointment to the Supreme Court. If Pence tried to cast the deciding vote to confirm Trump’s nomination to replace Justice Ruth Bader Ginsburg, who died last week at age 87, it would be the first time that has ever happened. That should matter to everyone — it certainly matters (or used to matter) to “originalists,” who emphasize the importance of history when interpreting our Constitution.

Actually I don't think the facts stated here matter much at all to originalists.  That no Vice President has ever done it proves little; we need to know whether any Vice President ever had the opportunity to do so and declined on constitutional grounds.  (I assume not, or else Professor Tribe would mention it.)  Also, if a Vice President had done so, it would matter a lot to originalists whether it happened early on, or in more recent years.  Originalists don't generically "emphasize the importance of history when interpreting our Constitution"; they emphasize the importance of immediate post-ratification events as a way of understanding original meaning.

Skipping a bit of modern history clearly not relevant to originalists, we come to:

When it comes to legislation, the vice president’s tiebreaking power affects only half of the lawmaking process: the vice president can break a tie in the Senate, but has zero say in the House of Representatives. Breaking a tie on judicial appointments, though, would give the vice president power over the entire appointments process, since it is only the Senate that weighs in on such matters. A thumb on part of the scale in the legislative process is hugely different from single-handedly tipping the entire scale when it comes to confirming justices — justices who will sit in judgment over the work of the other two branches, potentially including disputes over the upcoming election itself, in which Pence obviously has the most direct interest imaginable.

True enough, I suppose, but this isn't an originalist argument -- just an argument that there might be some policy reasons to prefer a different design.  That I don't doubt: the whole Vice-President-as-President-of-the-Senate seems like a dumb idea to me, but there it is.  Propose an amendment if you don't like it.

(And incidentally, under the original meaning, giving the Vice President a tiebreaking vote wasn't akin to giving the President a tiebreaking vote, since it wasn't assumed that the President and Vice President would be allies (as likely, they would be rivals, as with Adams and Jefferson).  This was of course changed by the 12th Amendment, but that change didn't change the original meaning of the Vice President's tiebreaking power.)

Then there is this central structural point:

For those who care about the details, Hamilton’s view and the historical practice (up until this administration) is confirmed by the structure and drafting history of our Constitution. As a structural matter, the provision granting the vice president the power to break ties in the Senate is located in Article I, which addresses Legislative Power. By contrast, the Senate’s “Advice and Consent” power over judicial appointments appears in Article II, making it a form of power wielded by the Senate that is executive, not legislative, in nature. The vice president has some power to influence legislation, by casting a tiebreaking vote in the Senate, while the Senate has some power to influence executive appointments, by granting or withholding consent. Structurally, the vice president cannot smuggle his Article I legislative tiebreaking power into Article II to undermine the Senate’s unique Article II executive power of advice and consent.

I like this argument because it works closely with the text.  But I think it ends up being inconclusive.  Maybe the framers thought about the design this way.  Maybe that's why Hamilton said in Federalist 69 that a divided Senate would produce no appointment.  But I can't see it as more than speculation.  It's a lot of weight to put on a very subtle point about the text's structure. We can speculate that the founding generation attached this significance to the placement of the tiebreaking power in Article I, but there's not much evidence that they did.  And it's not obvious that they would have drafted the Vice President's power differently if they wanted to state the tiebreaking vote on appointments expressly: maybe they would have put it in Article II as well, but as likely they would have thought the power in Article I carried over to the next article.  Nothing in Article I says its powers and procedures don't carry over to later articles, and often they do.  For example, when Congress exercises powers that are not granted in Article I (for example, creating lower federal courts [Article III, Sec. 1] or passing regulations for the territories [Article IV]), it follows the same procedures outlined in Article 1, Section 7; and the President has the same veto power in these non-Article I situations as is granted in Article I, Section 7.

Finally, as to drafting history: 

[T]he Framers first considered a provision that "Judges shall be nominated by the Executive, and such nomination shall become an appointment if not disagreed to by the [Senate].” But they rejected that language in favor of the provision that ultimately made its way into our Constitution: “[t]he President . . . shall nominate and by and with the advice and consent of the Senate appoint . . . Judges of the Supreme Court.”

That shift in language matters a lot — but only in the context of a tie. Under the first formulation, a tie favors the president, because the Senate cannot muster a majority to “disagree” with the appointment, while under the second — which became our constitutional law — a tie works against the president, because the Senate cannot muster a majority to “consent” to the appointment, leaving the nominee unconfirmed. But if the vice president is able to cast a tiebreaking vote, the difference is meaningless: The vice president decides whether the appointment goes through regardless of whether the standard is “if not disagreed to” or is “with the … consent.” Surely the Founders would not have spent their time and effort changing this language, which matters only when such votes are tied, if they understood the vice president had the power to break those ties.

I think the change in language matters for a different reason.  Under the original formulation, if the Senate fails to act, the appointment happens.  Under the revised language, if the Senate fails to act, the appointment fails.  That's a big difference unrelated to ties.  Relatedly, the original draft formulation has the problem of leaving unclear how long the Senate can delay in registering its disagreement before the appointment takes effect; the revision gets rid of this problem by substituting the simple rule of no-action-no-appointment.  So there are multiple reasons to change the language that have nothing to do with a tie.

In sum, it's an interesting and worthwhile argument, but I think it fails to overcome the simple text.  Article I, Section 3 says that the Vice President, as President of the Senate, "shall have no Vote, unless they [the Senators] be equally divided."  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates -- not just as to powers in Article I, but generally.  Professor Tribe's contrary arguments aren't nothing (from an originalist perspective), but they aren't enough.

ANDREW HYMAN ADDS:  Remember that (1) back in those days, the Vice-President was merely the second place finisher in the presidential election so the VP often failed to support the President, and (2) a nomination or any other measure has always failed in the Senate if the vote is tied and is not broken by the casting vote of the Vice-President.  So Hamilton was right that if the Senate is equally divided, then no appointment can be made, and if the Vice President (as president of the Senate) votes then the Senate is no longer equally divided.  Hamilton was making the point that the President of the U.S. had less power in this regard than the Governor of New York, and Hamilton was right about that too.  At the time, the council that appointed judges in New York consisted of the Governor and four state senators, and if the state senators were equally divided then the Governor could break the tie; in contrast, the President cannot break a Senate tie or force the Vice-President to break a Senate tie.


Originalism and Birthright Citizenship
Michael Ramsey

My new article is now posted on SSRN: Originalism and Birthright Citizenship (109 Georgetown L.J., forthcoming) (76 pages).  Here is the abstract:

The first sentence of the Fourteenth Amendment provides: “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.” This language raises two substantial questions of scope. First, what does it mean to be born “in” the United States? Does that include birth in U.S. overseas possessions, territories, bases, or places under temporary U.S. occupation? Second, what does it mean to be born “subject to the jurisdiction” of the United States? Does that include persons born in the United States to parents who are only temporary visitors or parents not lawfully present in the United States?

The original meaning of the citizenship clause’s text indicates a broad scope for constitutional birthright citizenship as to both places and persons. At the time of enactment, places subject to the permanent U.S. sovereign authority were considered “in” the United States without regard to whether they were territorially contiguous or culturally integrated into the U.S. political system. In mid-nineteenth-century terminology persons born within U.S. territory were “subject to [its] jurisdiction” unless excluded legally by international rules of immunity or practically by military or political realities.

But these originalist solutions in turn raise a challenge for originalism as a theory of modern constitutional interpretation. There is little evidence that the Amendment’s enactors considered or could have foreseen the modern implications of either question. The United States had no material overseas possessions when the Amendment was drafted and ratified. Restrictive federal immigration laws did not materially take hold in the United States until the late nineteenth century. Application of the citizenship clause thus requires originalism to confront the role (or lack thereof) of intent in modern originalist theory. Modern originalists generally claim to be bound by the original meaning of the text rather than the original intent of the enactors. But in the case of the citizenship clause, the text’s resolution of key questions of its scope appears to be largely accidental. The citizenship clause presses originalism to explain why original meaning should be binding in modern law when it does not reflect the enactors’ policy choices. As the Article will discuss, explanations are available, but they may take originalism away from some of its apparent common ground.

As long-time readers may remember, this article began as a series of blog posts many years ago, before I had any clear idea what I thought in the area.  Thanks to everyone who encouraged, commented on, and objected to my thinking as it developed.


An Unconstitutional Trick: Packing the Union
Andrew Hyman

On January 10 of this year, an anonymous student Note appeared in the Harvard Law Review titled, “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation.”  In a nutshell, the idea is that “Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods” as states.  I think this is about as likely to be attempted as giving the most populous members of the United Nations Security Council more votes apiece.  But still, the HLR note presents an interesting constitutional puzzle, worth at least a little blog post like this one.

I will not address the desirability of this proposal, only its legality.  Not that the HLR note is really concerned very much about legality: 

On multiple occasions, the nation’s constitutional order has changed radically, through aggressive political action, in ways that find legitimacy not in clear-cut legality, but in a generation asserting the importance of a change and ratifying it through subsequent elections.  If Congress were determined enough to change the Constitution through the addition of new states, it would not be deterred by courts subject to congressional control.

But let’s give this a serious legal examination.  The idea is that a slim majority in Congress, together with a sympathetic President, would be enough to give statehood to a bunch of D.C. neighborhoods, and then it would be easy to amend the Constitution.  Populous states like California and New York happen to have similar political views to residents of Washington D.C., so giving vast new powers to the latter could ensure vast new powers for the former.    

The HLR note proposes to use the power of the 127 new states to amend lots of provisions in the Constitution (e.g. getting rid of the electoral college). But the HLR note also acknowledges that the Entrenchment Clause in Article V says that, “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”   So, the constitutional amendments envisioned by the HLR note would maintain two votes per state in the U.S. Senate but remove much of the Senate’s powers.  That is, the HLR note suggests that, “The Senate’s duties could be changed without modifying its composition.”  It seems doubtful to me that 127 new states would be inclined to surrender their suffrage in the Senate or the House, much less dissolve themselves, so we ought to assume that they would not.  In any event, the HLR note emphasizes that any temporary or permanent changes to the composition of the Senate would be merely an effect rather than a cause of this whole scheme, inasmuch as all of the envisioned constitutional amendments could be made by circumventing the Senate via constitutional convention per Article V. So that’s the plan.  Would it be legal?  It is certainly ridiculous, but that alone does not necessarily make it illegal, though ridiculousness is a factor because courts will typically not construe laws to produce absurdity. 

The Constitution says that when a state is formed out of another, this requires not just the consent of Congress, but also two other consents: the “Consent of the Legislatures of the States concerned.”  The HLR note proposes to avoid those consents because “Congress could create an area of federal territory outside the federal district.” But the land in question was ceded to the federal government by Maryland for use as the federal seat of government, and it makes little difference whether Maryland attached further conditions to the cession, or whether Congress launders the land as a federal territory outside the district, or whether Maryland is entitled to a retrocession --- Maryland is still a “concerned” state per Article IV, Section 3, Clause 1 of the Constitution.  As a “concerned” party, Maryland would be constitutionally entitled to give or withhold its consent to the 127 new states, and each of the 127 new states would likewise be entitled to give or withhold its consent.  For a proposal that purports to increase democracy, the HLR note's proposal is remarkably dismissive of the consent of the governed.  Moreover, according to the Congressional Research Service, “The Maryland statute ceding the land made the cession ‘pursuant to the tenor and effect of the eighth section of the first article of the constitution of the government of the United States,’ suggesting that Maryland transferred the land for the limited purpose of creating the District of Columbia under the District and Federal Enclaves Clause (found in section 8 of Article I).” 

Now suppose that Congress, Maryland and the 127 new states do all consent per Article IV, Section 3, Clause 1 of the Constitution.  Maryland would hardly be providing equal protection to its citizens by drastically shrinking their representation in Congress, as compared to citizens in the areas ceded to the federal government.  But put that aside.  Would the 127 new states and the 254 new U.S. senators be constitutionally legitimate?  It’s very unlikely.  The 127 new states could not be compelled to deprive themselves of their equal suffrage in the Senate, per Article V, and so it is reasonable to assume now that they would not do so.  This proposal is therefore no different constitutionally from splitting Delaware into 10,000 states, which would in a realistic sense deprive every other state of its equal suffrage in the Senate, while giving Delawarians much more suffrage in the Senate.  It makes no difference whether the Senate’s duties are changed, or what amendments the 127 new states plan to ram through, or whether the 254 new U.S. Senators take office immediately. 

As a historical matter, the only four states that were created through the mutual consent requirements of the Constitution were Vermont, Kentucky, Maine, and West Virginia.  Vermont separated from New York in 1791, but Vermont had been de facto an independent state since 1777, which was long before the U.S. Senate and other federal institutions that the HLR criticizes were even created, so of course tilting the U.S. Senate could not have motivated the split between Vermont and New York.  Likewise, when Kentucky separated from Virginia in 1792 it was largely for geographic reasons, being separated by the Appalachian Mountains, and the Kentucky region already had held ten state constitutional conventions between 1784 and 1792.  When Maine separated from Massachusetts in 1820, they had no common border, and the separation was largely driven by bitterness over the failure of Massachusetts to defend that northern territory during the War of 1812.  And, when unionist West Virginia separated from secessionist Virginia in 1863, the motive again had nothing to do with altering federal structures.  None of those historical instances involving mutual consent of the concerned parties was intended to gut the power of the existing states (or any of them). 

If the population of Washington D.C. is divided by 127, we get the average population of the proposed new states: about 5,600 people.  That’s less than 1% of the population of Wyoming (now the least populous state), and less than .02% of the population of California (now the most populous state).  Why not just split up states like California?  As Vesan Kesavan and Michael Stokes Paulsen have pointed out, Congress has already granted permission to Texas to split into five states, but Congress insisted that each of the new states have “sufficient population.”  One-fifth of the population of Texas is now about ten times the population of Wyoming, so it would not be absurd.

In conclusion, it looks to me like the HLR note is proposing to unconstitutionally give statehood to each of 127 neighborhoods in Washington D.C. without returning the land to Maryland, and without giving Maryland any say in the matter at all.  If Maryland is given a say, and consents to the scheme, then Maryland would not just be denying equal protection to its current citizens, but also deliberately undermining the Entrenchment Clause in a way that has never been done before.