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31 posts from September 2020


Nicholas Parrillo on Nondelegation and the Federal Real Estate Tax of the 1790s
Michael Ramsey

Nicholas R. Parrillo (Yale University - Law School) has posted A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s (Yale Law Journal, forthcoming) (111 pages) on SSRN.  Here is the abstract:

The Supreme Court is poised to toughen the nondelegation doctrine to strike down acts of Congress that give broad discretion to administrators, signaling a potential revolution in the separation of powers. A majority of the Justices have suggested they are open to the sweeping theory that all agency rulemaking is unconstitutional insofar as it coerces private parties and is not about foreign affairs. If adopted, this theory would invalidate most of the federal regulatory state. Jurists and scholars critical of rulemaking’s constitutionality base their claims on the original meaning of the Constitution. But these critics face a serious obstacle: early Congresses enacted several broad delegations of administrative rulemaking authority. The critics’ main response has been that these early statutes don’t count, because they fall into areas in which (say the critics) the original nondelegation doctrine did not apply, or applied only weakly: non-coercive legislation (e.g., giving benefits) or foreign-affairs legislation.

This Article finds that the originalist critics of rulemaking are mistaken to say that no early congressional grant of rulemaking power was coercive and domestic. There is a major counter-example missed by the literature on nondelegation, indeed by all of legal scholarship, and not discussed more than briefly even by historians: the rulemaking power under the “direct tax” of 1798. In that legislation, Congress apportioned a federal tax quota to the people of each state, to be paid predominantly by owners of real estate in proportion to their properties’ respective values. Thousands of federal assessors assigned taxable values to literally every house and farm in every state of the Union, deciding what each was “worth in money”—a standard that the legislation stated but did not define. Because assessors in different parts of a state could differ greatly in how they did valuation, Congress established within each state a federal board of tax commissioners with power to divide the state into districts and to raise or lower the assessors’ valuations of all real estate in any district by any proportion “as shall appear to be just and equitable”—a phrase undefined in the statute and not a term of art. The federal boards’ power to revise valuations en masse in each intra-state tax district is identical to the fact pattern in the leading Supreme Court precedent defining rulemaking. Thus, each federal board in 1798 controlled, by rule, the distribution of the federal tax burden within the state it covered.

This Article is the first study of the federal boards’ mass revision power. It establishes that the mass revisions (a) were often aggressive, as when the federal board in Maryland raised the taxable value of all houses in Baltimore, the nation’s fourth-largest city, by 100 percent; (b) involved much discretion, given serious data limitations and the absence of any consensus method; (c) had a major political aspect, as the federal boards were inheriting the contentious land-tax politics that had previously raged within the state legislatures, pitting the typical state’s rich commercial coast against its poor inland farms; (d) were not subject to judicial review; and (e) were accepted as constitutional by the Federalist majority and Jeffersonian opposition in 1798 and also by the Jeffersonians when they later took over, indicating the boards’ power was consistent with original meaning, or, alternatively, with the Constitution’s liquidated meaning. Vesting administrators with discretionary power to make politically-charged rules domestically affecting private rights was not alien to the first generation of lawmakers who put the Constitution into practice.

More broadly, this Article is the first in-depth treatment of the 1798 direct tax’s administration. It shows that the tax, measured by personnel, was the largest federal administrative endeavor, outside the military, of the Constitution’s first two decades. It is remarkable that today’s passionate debate on whether the administrative regulatory state violates the framers’ Constitution has so far made no reckoning with this endeavor.

There's been no official announcement but I can say (since I'm on the selection committee) that this paper will be presented at the Originalism Works-in-Progress conference at the University of San Diego in February 2021.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended."


Glenn Reynolds on the Overly Important Supreme Court
Michael Ramsey

At USA Today, Glenn Reynolds: Ginsburg flap shows Supreme Court, justices are too important.  From the introduction: 

Ruth Bader Ginsburg has died, and the country — or at least its political class — is descending into what will no doubt be a multi-week screaming fit. In fact, the screaming has already begun.

But that fact tells us something about the state of our nation, and it’s not anything good. When your political system can be thrown into hysteria by something as predictable as the death of an octogenarian with advanced cancer, there’s something wrong with your political system. And when your judicial system can be redirected by such an event, there’s something wrong with your judicial system, too. ...


Why does Justice Ginsburg’s replacement matter so much that even “respectable” media figures are calling for violence in the streets if President Trump tries to replace her? Because the Supreme Court has been narrowly balanced for a while, with first Justice Anthony Kennedy, and later Chief Justice John Roberts serving as a swing vote. Ginsburg’s replacement by a conservative will finally produce a long-heralded shift of the Supreme Court to a genuine conservative majority.  

That shift matters because, for longer than I have been alive, all sorts of very important societal issues, from desegregation to abortion to presidential elections and state legislative districting — have gone to the Supreme Court for decision. Supreme Court nominations and confirmations didn’t used to mean much — Louis Brandeis was the first nominee to actually appear before the Senate Judiciary Committee — because the Court, while important, wasn’t the be-all and end-all of so many deeply felt and highly divisive issues. Now it very much is.

The point isn’t whether the Court got the questions right. The point is that it decided these important issues and, having done so, took them off the table for democratic politics. When Congress decides an issue by passing a law, democratic politics can change that decision by electing a new Congress. When the Court decides an issue by making a constitutional ruling, there’s no real democratic remedy.

That makes the Supreme Court, a source of final and largely irrevocable authority that is immune to the ordinary winds of democratic change, an extremely important prize. And when extremely important prizes are at stake, people fight. And get hysterical.

And with an amusing proposal at the end. (Via Instapundit.)

I agree it's a problem (though I'm less sure it's a new one).  So would originalism solve it (as some, though not Professor Reynolds, have suggested)?  In part, yes.  Originalism would surely help get the Court away from deciding societal issues based on policy intuitions.  For one thing, the Constitution's original meaning simply does not speak to a wide range of social and political issues -- leaving them through its silence to the political branches of the federal government or the states.  In contrast, under living constitutionalism it's easy enough to claim that most anything is unequal (violating equal protection) or unfair (violating due process).  Of course, those claims might not succeed, but that's the point: whether they succeed or not depends on the composition of the Court. 

Further, originalism -- despite claims to the contrary -- does give fairly clear results on some sharply disputed issues.  For example, I think the Constitution's original meaning extends birthright citizenship to U.S.-born children of temporary visitors or undocumented aliens, and I'm pretty confident of an originalist Court upholding it. (Have I mentioned that I have an article coming out very soon on this issue?) But President Trump and a number of conservative commentators think otherwise on policy grounds, and who knows what a conservative nonoriginalist Court might do with the issue. Originalism would take the politics out of such issues.  And, relatedly, even when originalists disagree, they (one hopes) don't divide on partisan or outcome-oriented lines but rather on different readings of the original sources.

But originalism doesn't solve the problem in full.  Professor Reynolds objects most strongly that the Court is taking too many issues away from the political branches. But most originalists have no problem with (and indeed encourage) the Court taking issues away from the political branches when the Constitution's original meaning authorizes it.  Only originalism combined with super-strong deference to the political branches would accomplish the goal of avoiding judicial resolution of important social issues.  And I think actually very few people favor that approach across the board. (I bet Professor Reynolds favors judicial intervention against the political branches in, for example, free speech, gun rights and many criminal procedure areas.)

In addition, originalism does not always lead to clear answers.  Some constitutional provisions are difficult to understand at the most basic level.  Even when a provision's general outlines are clear, there may be issues of linedrawing and implementation.  It will matter significantly how a nominee approaches these questions, even if we assume the nominee won't be influenced by substantive preferences.  And in facing a difficult question it's hard to entirely shut out one's substantive preferences, even with the best of intentions.

As a result, I think an originalist Court would continue to play an important role in resolving key societal questions, and that control over nominations would remain highly prized.  It's the price of constitutional democracy.  But a shift to a more originalist Court would reduce at least some of the pathologies we now face.


Legal Theory Lexicon on Communicative Content and Legal Content
Michael Ramsey

Larry Solum's Legal Theory Lexicon has an updated entry for Communicative Content and Legal Content.  From the introduction: 

One of the most basic ideas in legal theory is the distinction between "communicative content" and "legal content."  That sounds fancy, but this fundamental idea is very simple.  Legal texts of all kinds communicate; they say things.  Roughly, what they say is their linguistic meaning--the meaning of the words and phrases in context.  Some legal texts, those that are valid, create legal norms.  Other legal texts, those that are invalid or no longer in effect, do not create any legal content at all or, if they once created legal content, they no longer do so.  The Confederate Constitution has communicative content.  We can read it and discern its meaning, but that document no longer generates legal content.  There are no currently valid propositions of law that are derived from the Confederate Constitution.  The legal content of documents like the Confederate Constitution is not the same as their communicative content.  This example illustrates the possibility of divergence between linguistic meaning and legal meaning.

And from later on:

Some Implications for the Debates Between Formalists and Realists

One of the important ways to use the distinction between communicative content and legal content arises in connection with the debate between formalists and realists about the interpretation of constitutions, statutes, and other legal texts.  Formalists maintain that the legal content associated with a text should be constrained by the communicative content conveyed by the text, whereas legal realists frequently argue that legal content should not be so constrained.  For example, constitutional originalists maintain that when courts engage in the construction of legal doctrines, they should consider themselves bound by the original public meaning (communicative content) of the text, whereas nonoriginalist living constitutionalists argue that the legal content of constitutional doctrines can modify, override, or even nullify the original public meaning.  Similarly, plain meaning textualists argue that courts engaged in statutory construction should consider themselves bound by the communicative content of the statutory text, whereas the more realist purposivists believe that courts may override the plain meaning of the text in order to serve the purpose or function that an ideally reasonable legislature would have had in enacting the text.


Kurt Lash on Thomas Jefferson
Michael Ramsey

At Law & Liberty, Kurt Lash: “Contextualizing” Jefferson.  From the introduction: 

The University of Virginia Board of Visitors has decided to add “context” to the statue of Thomas Jefferson near the University Rotunda. Their decision comes on the heels of a similar decision by a Washington D.C. task force to “remove, relocate or contextualize” the Jefferson Memorial in the nation’s capital. Removal and relocation of the Jefferson Memorial are unlikely. But if D.C. officials follow the approach of UVA’s Board of Visitors and attempt to “contextualize” Thomas Jefferson, they should do so in a manner emphasizing Jefferson’s outsized role in ending the institution of chattel slavery.

American slavery was not ended simply by force of arms. Slavery was abolished by way of debate, the exchange of ideas, and a vote by the people of the United States to adopt a Thirteenth Amendment to the Constitution. In that debate, no one’s words and ideas were more important than Thomas Jefferson’s.

Jefferson drafted the Declaration of Independence and the single most important paragraph on freedom in American history. “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

These words, radical in their time, embrace every member of the human family. They are as true as the morning sun, and yet have never been so stunningly and incontrovertibly declared as by the young Thomas Jefferson at the threshold of the American Revolution.

And from later on:

The language of the Thirteenth Amendment was copied from the 1787 Northwest Ordinance which declared “[t]here shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment of crimes, whereof the party shall have been duly convicted.” When Democrats tried to argue that the United States was founded on slavery and white supremacy, Republicans simply pointed to the language of the Northwest Ordinance as proof that the country embraced abolition even before it embraced the Constitution. Even if the Constitution allowed individual southern states to institute slavery, one of the foundational laws of the American people embraced abolition. The Thirteenth Amendment was not a repudiation of the original Founding, but instead represented the fulfillment of America’s founding creed.

And, it just so happens, the language of the Northwest Ordinance came from the same pen that authored the Declaration of Independence—Thomas Jefferson. The words that inspired the abolitionist movement and the words that constitutionalized abolition both came from the extraordinary mind at Monticello.


A Privileges or Immunities Case for the Supreme Court?
Michael Ramsey

Via the Institute for Justice, Courtney v. Danner is a rare case raising a substantial claim under the modern version of the Fourteenth Amendment's privileges or immunities clause.  As the IJ explains:

Jim and Cliff Courtney have spent 23 years trying to travel 55 miles by boat—and they have yet to reach their destination. With the petition they filed yesterday asking the U.S. Supreme Court to review their case, the brothers hope their next stop will be before the nation’s High Court.

Since 1997, the brothers from Washington state have been fighting for their right to use the nation’s waters in pursuit of a livelihood. But rather than allow Jim and Cliff to pursue a living on the 55-mile-long Lake Chelan in the northern Cascades, the State of Washington has instead used a century-old public ferry licensing law to prevent them from even shuttling customers of their family’s own businesses at the far end of the lake. The Courtneys challenged the state’s bar on their use of Lake Chelan, and after nearly a decade of litigation, the 9th U.S. Circuit Court of Appeals dismissed their case. But now the Courtneys are teaming with the Institute for Justice to ask the U.S. Supreme Court to review that decision.

Jim and Cliff’s case hinges on the interpretation of a constitutional provision and a landmark precedent that are well-known to constitutional scholars: the Privileges or Immunities Clause of the Constitution’s 14th Amendment and the Slaughter-House Cases, an 1873 decision in which the U.S. Supreme Court upheld the power of states to create monopolies in certain industries. But, interestingly, in that case, the justices held that among the rights (known then as “privileges or immunities”) that states have to respect is the “right to use the navigable waters of the United States”—the very right at the heart of Jim and Cliff’s case and their private boat service.

According to the State of Washington and the 9th Circuit, however, that right is essentially meaningless. ...

From the petition:

The Ninth Circuit ... constru[ed] the right to use the navigable waters ... only [to] encompass[ ] uses that “involve interstate or foreign commerce,” ... and Washington’s ban on “intrastate boat transportation” therefore “does not affect the Courtneys’ privileges or immunities as citizens of the United States.” In so holding, the Ninth Circuit reduced a distinct right derived from national citizenship to a mere redundancy of the right to engage in interstate or foreign commerce.

And  further:

[T]he Ninth Circuit concluded that the Clause generally bars claims against one’s own State—a conclusion that resulted from its conflation of the Privileges or Immunities Clause of the Fourteenth Amendment with the Privileges and Immunities Clause of Article IV, section 2. The latter clause is limited to protecting out-of-state residents. As Slaughter House held, it does not control “the power of the State governments over the rights of its own citizens.” Slaughter-House, 83 U.S. (16 Wall.) at 77; ... But the Ninth Circuit cited this passage from Slaughter-House for the proposition that the Fourteenth Amendment’s Privileges or Immunities Clause “in general bar[s] . . . claims against the power of the State governments over the rights of [their] own citizens.” ...  In so doing, the Ninth Circuit relied on its prior decision in Merrifield, where it enshrined this mistake in the court’s published precedent. This is the constitutional equivalent of mixing apples and oranges—a mistake surprisingly common...

I'm not entirely sure that the right to use intra-state navigable waters is a privilege or immunity of U.S. citizenship -- but the clause has to have meant something, and that's one of the few things the Court has actually said it meant.  So it's rather embarrassing if even that right turns out to mean nothing. It would be great if this case inspired some originalist rethinking of the clause.

Also I think the petition is right that the Ninth Circuit seriously misread both Slaughter-House and the privileges or immunities clause.  The Article IV privileges and immunities clause doesn't allow claims against one's home state (it's an anti-discrimination rule).  But the privileges or immunities clause surely does, as to the rights it protects (the difficult question is which rights it protects).  That's exactly how Slaughter-House described the two clauses; it just read the Amendment's protected rights very narrowly (83 U.S. at 77-79).  If the Amendment protects rights derived from national citizenship, of course those rights apply to both in-state and out-of-state claimants.  It makes no sense to say, in Courtney for example, that out-of-state claimants might have a right to use Lake Chelan as a privilege of U.S. citizenship but in-state residents do not. 

(Note: I blogged about an earlier version of this case here. Thanks to Michael Bindas of IJ for the pointer.) 


Reviews of "The Essential Scalia"
Michael Ramsey

Law & Liberty has posted two reviews of The Essential Scalia (the new collection of Scalia's writings edited by Jeffrey Sutton and Whelan).

John McGinnis: Scalia’s Wisdom and Wit.  From the introduction:

The British have a saying that a great politician makes the weather. The rest must figure out how to deal with the new patterns of social disturbance that this statesman or stateswoman creates. Antonin Scalia was the justice who created the jurisprudential weather for our time. Judges and academics still react to his ideas.

Thus, it is a fitting tribute to the justice that The Essential Scalia: On the Constitution, the Courts, and the Rule of Law has been published four years after his death. As important as Supreme Court justices are when they render decisions, their essays and opinions are rarely worth studying as an oeuvre once they have departed. But The Essential Scalia is, indeed, still essential for anyone who studies law, as his ideas still drive the debate.

The editors, Jeffrey Sutton, a judge on the Sixth Circuit, and Edward Whelan, the President of the Ethics and Public Policy Center, wisely begin the collection with the justice’s essays on his great passions: the centrality of rules to the law, originalism, and textualism. The three ideas are interrelated. For Scalia, originalism and textualism both seek the public meaning of the words of an enactment—of the Constitution and of statutes respectively. Scalia also contends that originalism is justified normatively in large part because following original meaning generates rules that discipline interpreters and prevent them from exercising their personal discretion. As the title of the first essay in the collection shows, Scalia believes that the essence of the rule of law is that it is a law of rules.  

The editors then provide excerpts from many of Scalia’s greatest opinions and essays on more specific topics, allowing us to watch how his theory of law is translated into action. In his constitutional law dissents, Scalia consistently complains that the majority has not created a rule, making the foundation of government uncertain. For instance, in his celebrated dissent in Morrison v. Olson, he observed that the majority had deprived the president of uniform control over all executive branch subordinates. Yet it had failed to specify any clear test for determining how much of executive power Congress can make independent of the president, leaving it wholly uncertain just how many government officials the legislature could turn into free-floating bureaucrats.

Mark Pulliam: A Scalia Digest.  From the introduction:

Perhaps unfairly, most jurists are quickly forgotten when they leave the bench. Some are remembered only in infamy: the “Four Horsemen” who blocked the New Deal early on; Roger Taney for the Dred Scott decision; Harry Blackmun as the unlikely author of Roe v. Wade, and so forth. Justices with a literary flair tend to linger in the public mind, explaining the enduring influence of Oliver Wendell Holmes and Robert Jackson, among a handful of others.

History’s judgments can be fickle—even random. A single footnote (in Carolene Products) ensures Harlan Fisk Stone’s fame, a single dissent (in Plessy v. Ferguson) sanctifies John M. Harlan, and Potter Stewart’s jurisprudential legacy will likely be defined by a single phrase (“I know it when I see it”) from his concurring opinion in Jacobellis v. Ohio. Some justices are associated with scandal (e.g., Abe Fortas), and others are known mainly for their extrajudicial exploits (e.g., William O. Douglas). Most—like David Souter—simply disappear from public consciousness altogether.

A small number stand out as jurisprudential giants: John Marshall, William Brennan (although Earl Warren often gets the credit), and a debatable assortment of runners-up—Story, Field, Brandeis, Hughes, Frankfurter, Harlan II, Rehnquist, Thomas (con law scholars will argue vociferously about the rankings, but the list is short in any event). One thing is sure: Antonin Scalia is one of the greatest of all time, for all the right reasons. He will never be forgotten. A new book, The Essential Scalia, edited by a pair of former Scalia clerks (Sixth Circuit Judge Jeffrey Sutton and Ed Whelan), illustrates why.

Scalia’s judicial record, spanning 30 years on the Court, was massive, consisting of 870 opinions (281 majority opinions, 315 concurrences, and 274 dissents). In addition, he wrote important scholarly publications, in particular a 1989 article in the University of Chicago Law Review entitled “A Rule of Law as a Law of Rules” (delivered as the Oliver Wendell Holmes, Jr. Lecture at Harvard Law School) and the book A Matter of Interpretation in 1997. Moreover, until his untimely death in 2016, Scalia gave many speeches, to assorted audiences on a variety of subjects. In 2011, he even testified before the Senate, where he joked that his “pilgrimage” on the Court had started, referring to his unanimous (98-0) confirmation in 1986 as the first Italian-American justice.

In The Essential Scalia, Sutton and Whelan have done a yeoman’s job of culling the highlights from Scalia’s work and organizing them into themed categories. The topics include originalism, textualism, constitutional structure, and administrative law, and cover a diverse array of Supreme Court cases. Each chapter begins with a brief preface by the editors, providing relevant context, and each entry is introduced with a brief description of its source and background. Most impressively, in the interest of including a broad sample of Scalia’s writings without producing an unworkably-voluminous compilation, the editors were able to abridge them and streamline the text by eliminating most footnotes, case citations, ellipses, and similar matter.



Randy Barnett on Stare Decisis and Originalism
Michael Ramsey

At Law & Liberty Forum, Randy Barnett: Stare Decisis for Originalist Judges.  From the conclusion:

Is there, then, any proper role for horizontal stare decisis at the Supreme Court? I think so. Supreme Court justices should give “weight” to previous opinions of the Court that a justice is satisfied utilized originalist reasoning in good faith. The reason for this is epistemic. Careful originalist research is often difficult and time-consuming. And we cannot be confident of the conclusions of originalist analysis until it is subjected to genuine peer review by other knowledgeable originalist scholars holding different views.

For this reason, originalism requires a division of labor between scholars who research original meaning in advance of a particular case or controversy and an originalist judge or justice who must decide many cases under the pressure of time. Once the Court has reached a conclusion on the basis of peer-tested originalist scholarship, therefore, there are good prudential reasons for other originalist justices to defer to that conclusion unless and until it is called into question by sufficiently persuasive competing originalist scholarship. And they might even impose some burden of proof on advocates claiming that a previous opinion grounded in good faith originalism was in error.

Because time is scarce, there is also a reason to adhere to nonoriginalist precedent in a case where that precedent leads to results that are consistent with original meaning—where adhering to originalism would not change the result. On the other hand, adopting originalism in such cases makes transitioning to a more consistently originalist jurisprudence less costly. Indeed, there are sound originalist justifications for much of modern constitutional doctrine, and it would bolster the case for originalism for this to be more widely known.

Where a big change in the doctrine is warranted, however, an originalist majority—should we ever get one—might “stay” their ruling to provide time to amend the Constitution the right way: through Article V. They might even urge (in dicta) that such an amendment should be enacted, while affirming their own powerlessness to amend the Constitution themselves. If a previous nonoriginalist precedent has truly become “grounded in deep-rooted traditions of law, politics, and culture,” an Article V amendment would likely be forthcoming. This used to be our practice. Reviving the culture of amending the Constitution via the states—rather than via a majority of the Supreme Court—would be healthy for our politics and our culture.

Professor Barnett's contribution is a comment on this essay by Marc DeGirolami; as noted, Ilan Wurman also had an essay in response.


New Book: The Essential Scalia
Michael Ramsey

Just published: The Essential Scalia: On the Constitution, the Courts, and the Rule of Law (Jeffrey Sutton & Edward Whelan, eds.) (Crown Forum 2020). Here is the book description from Amazon:

Supreme Court Justice Antonin Scalia in his own words: the definitive collection of his opinions, speeches, and articles on the most essential and vexing legal questions, with an intimate foreword by Justice Elena Kagan

A justice on the United States Supreme Court for three decades, Antonin Scalia transformed the way that judges, lawyers, and citizens think about the law. The Essential Scalia presents Justice Scalia on his own terms, allowing readers to understand the reasoning and insights that made him one of the most consequential jurists in American history.

Known for his forceful intellect and remarkable wit, Scalia mastered the art of writing in a way that both educated and entertained. This comprehensive collection draws from the best of Scalia’s opinions, essays, speeches, and testimony to paint a complete and nuanced portrait of his jurisprudence. This compendium addresses the hot-button issues of the times, from abortion and the right to bear arms to marriage, free speech, religious liberty, and so much more. It also presents the justice’s wise insights on perennial debates over the structure of government created by our Constitution and the proper methods for interpreting our laws.

Brilliant and passionately argued, The Essential Scalia is an indispensable resource for anyone who wants to understand our Constitution, the American legal system, and one of our nation’s most influential and highly regarded jurists and thinkers.

(Via Ed Whelan at NRO Bench Memos, who has some excerpts from the book and from reviews).


Evan Bernick: Antisubjugation and the Equal Protection of the Laws
Michael Ramsey

Evan D. Bernick (Georgetown University Law Center) has  posted Antisubjugation and the Equal Protection of the Laws (55 pages) on SSRN.  Here is the abstract:

This Article challenges 150 years of conventional wisdom regarding whether the Fourteenth Amendment protects people against “private” violence and secures “positive” rights to governmental aid. The conventional wisdom is that it does neither; this Article argues that it does both. More specifically, it contends that (1) the original meaning of the Equal Protection Clause imposes an affirmative duty on states to protect the life, liberty, and property of all people; (2) the original function of the Clause was to prevent subjugation of people’s lives, bodies, and possessions by state and nonstate actors; and (3) the Supreme Court has since its 1883 decision in the Civil Rights Cases misinterpreted the letter and undermined the spirit of the Equal Protection Clause by denying (1) and neglecting (2).

Scholars have long criticized the Court’s reasoning in The Civil Rights Cases and more recent state-action and positive-rights decisions like DeShaney v. Winnebago County Department of Social Services and United States v. Morrison. But the leading alternative theories of the Equal Protection Clause either deny that the Fourteenth Amendment contains any state-action/no-positive-rights limitations or hold that equal protection of the laws entails only a narrow duty to protect people against violence. Against the former, I ground my constitutional objection to the state-action doctrine in the original meaning of the Equal Protection Clause. Against the latter, I claim that the affirmative duty to protect guarantees not only protection against violence but protection against other forms of subjugation—that is, subjection of the bodies and possessions of some to the untrammeled will of others. An arrestee may be subjugated through a physically coercive police interrogation; an evictee may be subjugated through a civil proceeding that deprives them of their home; a criminal defendant may be subjugated by being detained owing to failure to make bail.

Putting constitutional theory in conversation with ongoing social movements, I suggest that the “Civil Gideon” movement and the Movement for Black Lives might find constitutional resources in the letter and the spirit of the Equal Protection Clause. Finally, I propose that Congress is best-situated among federal institutional decisionmakers to thwart subjugation and that the Court’s lack of confidence in its own institutional competence ought no longer serve as an excuse for disabling Congress from enforcing the Equal Protection Clause.


Josh Blackman on the MDLEA and the Foreign Commerce Clause
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Eleventh Circuit Panel finds that Maritime Drug Law Enforcement Act exceeds Congress's Powers under the Foreign Commerce Clause and the Necessary and Proper Clause Powers.  From the introduction:

In August, a panel of the Eleventh Circuit decided U.S. v. Davila-Mendoza. The case presented an as applied challenge to the Maritime Drug Law Enforcement Act. The MDLEA prohibits drug-trafficking in foreign waters. Judge Branch wrote the majority opinion, which was joined by Judge Jill Pryor (no relation to Chief Judge Bill Pryor) and Judge Danny Boggs (my former boss from the Sixth Circuit who was sitting by designation). The panel found that the MDLEA exceeded Congress's powers under the Foreign Commerce Clause and the Necessary and Proper Clause.

Here, the Court presumes the Lopez framework for the Interstate Commerce Clause extends to the Foreign Commerce Clause. The MDLEA could only be upheld under the so-called "substantial effects" test. (In fact, the "substantial effects" test is an application of Congress's Necessary and Proper Clause power, but Chief Justice Rehnquist elided this position.) The substantial effects test allows Congress to regulate intrastate economic activity that has a substantial effect on interstate commerce. But there is a problem for this case. Economic activity in foreign waters is not intrastate economic activity. Judge Branch shows a careful grasp of Raich:

Turning to Raich, the government argues that Raich reaffirmed that wholly intrastate economic activities could have a substantial effect on interstate commerce and could be regulated by Congress via the Interstate Commerce Clause. Therefore, according to the government, if we logically extend Raich to this case, the MDLEA's application to the defendants' extraterritorial conduct is a permissible exercise of Congress's authority under the Foreign Commerce Clause because Congress could rationally conclude that foreign drug trafficking could have a substantial effect on the international drug trade, which has an aggregate economic impact on foreign commerce. However, while Raich may serve as a backdrop for our analysis, Raich involved Congress's power to regulate commerce "among the states," which undoubtedly presents a different question than Congress's power to regulate commerce "with foreign nations," and, therefore, does not necessarily control our analysis. In other words, the Interstate Commerce Clause jurisprudence must be carefully adapted to fit the "commerce with foreign nations" context.

I'm sympathetic to the outcome, but I don't easily see how one gets there other than by thinking Raich was wrongly decided.  I wouldn't think that Congress' necessary-and-proper power with respect to the interstate commerce clause is broader than its necessary-and-proper power with respect to the foreign commerce clause.  If anything, one might think it would be narrower, because a broad reading of the interstate commerce power interferes with the federalism-based prerogatives of the states; a broad reading of the foreign commerce power may interfere with the  prerogatives of foreign nations, but that's not a matter of constitutional magnitude. 

Of course, the court of appeals can't say Raich was wrong, so maybe this is a way to set the case up for Supreme Court review (and maybe the current Court would think Raich was wrong, or at least too broad).