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39 posts from October 2020

10/31/2020

How Many State Citizenships is a Billionaire Entitled to Under the Fourteenth Amendment?
Andrew Hyman

I am not a billionaire, and you probably aren’t either, but still it’s interesting to consider someone who owns houses in many states, and this hypothetical may help to clarify the meaning of the Fourteenth Amendment’s Citizenship Clause.  That clause says, “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.”  If a billionaire owns residences in fifteen different states, is he entitled under the Fourteenth Amendment to state citizenship in all fifteen states?

I think the answer is pretty clear.  The word “state” in the Citizenship Clause is singular, so the constitutional entitlement is to state citizenship in only one state. 

In turn, this implies that the word “reside” was not used in its broadest sense in the Citizenship Clause.  Bouvier’s Law Dictionary was the leading American law dictionary in the 1860s when the Fourteenth Amendment was written and adopted.  It includes several definitions of the word “residence,” which say nothing about the concept of “primary residence” but those definitions do speak quite a bit about “domicil.”  Here is the leading definition of the word “residence” from Bouvier’s:

RESIDENCE. The place of one's domicil. (q. v.) There is a difference between a man's residence and his domicil. He may have his domicil in Philadelphia, and still he may have a residence in New York; for although a man can have but one domicil, he may have several residences. A residence is generally transient in its nature, it becomes a domicil when it is taken up animo manendi. Roberts; Ecc. R. 75.

So, it seems fairly clear that when the word “reside” was used in the Citizenship Clause, the intended meaning was “domicil” (also spelled “domicile”).  The Citizenship Clause apparently assumes that someone who is constitutionally entitled to citizenship has a domicile in one of the states.  Of course, even if one is not constitutionally entitled to citizenship, one can still be entitled to it by statute.

Guest Posts at Volokh Conspiracy on Originalism and Birthright Citizenship
Michael Ramsey

Here are my guest posts from this week at Volokh Conspiracy, where I was blogging about my forthcoming article Originalism and Birthright Citizenship:

Originalism and Birthright Citizenship: The original meaning of the citizenship clause answers some questions and raises some others.

The Original Meaning of "Born … in the United States": It encompassed all territory under U.S. permanent sovereignty.

The Original Meaning of "Subject to the Jurisdiction" of the United States: It meant under the authority of U.S. law, thus excluding foreign diplomats, foreign armies and (at the time) Native American tribes.

Applying the Citizenship Clause's Original Meaning to Modern Controversies: The original meaning gives birthright citizenship to the U.S.-born children of undocumented migrants, even though its drafters didn't realize it would.

Originalism and Accidental Outcomes: Should we follow the original meaning even when it resolves issues in ways its enactors did not foresee?

10/30/2020

Jud Campbell: Natural Rights, Positive Rights, and the Right to Keep and Bear Arms
Michael Ramsey

Jud Campbell (University of Richmond School of Law) has posted Natural Rights, Positive Rights, and the Right to Keep and Bear Arms (32 Law & Contemp. Probs. 31 (2020)) (22 pages) on SSRN.  Here is the abstract:

The first judicial opinions interpreting the right to bear arms embraced vastly divergent views of the right, leading scholars to perceive these decisions as being in disarray. This article argues that these conflicts reflect exactly the sorts of disagreements that one would expect given that Americans viewed the right to bear arms as a natural right and as a positive right. Indeed, the first right-to-bear-arms decisions exemplified tensions that emerged when judges confronted claims about natural rights and positive rights in a changing social and legal landscape. As a natural right, the right to carry firearms could only be limited in promotion of the public good, which was quintessentially a question of legislative judgment. Yet emergent attitudes about judicial review counseled against absolute deference to legislatures. As a positive right, the right to bear arms offered more determinate legal protection. But its tradition-based content did not specify how to resolve novel problems, and entrenched norms posited that judges could only apply existing law — not make it up. Enforcing natural rights and positive rights in novel circumstances thus required judges to adopt rules that were over-inclusive, under-inclusive, or a combination of both. And that is precisely what one sees in the first right-to-bear-arms cases. The article concludes with a discussion of how this history bears on contemporary debates about the Second Amendment.

Update:  At Legal Theory Blog, Larry Solum says "Highly recommended.  Download it while it's hot!"

10/29/2020

John Harrison: Executive Discretion in Administering the Government's Rights and the Delegation Problem
Michael Ramsey

John C. Harrison (University of Virginia School of Law) has posted Executive Discretion in Administering the Government's Rights and the Delegation Problem (30 pages) on SSRN.  Here is the abstract:

Governments regulate private conduct. They also exercise rights of ownership and contract that are like those of private people. From the founding to today, executive officials have exercised substantial policy discretion in managing the government's own resources. That practice is consistent with the text and structure of the Constitution. Administering the government's resources, and making policy judgments in doing so, is at the core of carrying the law into execution. The executive itself does not have power to create programs that employ federal resources such as federal funds, but when Congress creates such a program, it may leave many important choices to the executive. At most, the Constitution requires that Congress provide an intelligible principle to guide that discretion. The non-delegation principle concerning regulation of private conduct may be more demanding than that, but the exercise of the government's own rights is a distinct category of executive activity. The practical scope of this principle is substantial. Federal spending today is a major tool through which Congress affects behavior. Like spending and contracting, federal regulation through licensing takes the form of the administration of the government's resources. Licensing of broadcasting, for example, rests on the principle that the airwaves are public and not private property, and that private people may use that resource only on terms the government sets. Licensing schemes put the government in the position of an owner, able to give licenses that permit conduct that otherwise would violate the owner's rights. Congress therefore may give executive officials substantial discretion when it creates a licensing system. The important question is the extent of Congress's power to put the government in the position of an owner. Two well-known early examples of delegation to the executive, the Indian Commerce Act of 1790, and the regulation of steamboat safety, took the form of licensing. The historical evidence does not indicate that proponents of those systems justified delegation on the grounds suggested here. It does suggest that steamboat licensing was understood to be based on federal control of the public right of navigation of interstate waterways. The executive function of administering the government's resources is a distinct category of executive activity from the standpoint of constitutional structure, and the principles that apply to delegation in other contexts need not apply in that context.

10/28/2020

More on Gendered Pronouns and Female Presidents
John Vlahoplus

The recent debate over gendered pronouns and female presidents shows that there is rarely anything new under the constitutional sun.  George W. Paschal analyzed the issues in an 1868 work.  Following are excerpts, not in their original order, with my comments bracketed. 

Paschal begins by discussing the presidential eligibility clause:

“And here, again, the language of this clause has to be construed in connection with other clauses and the general understanding of mankind.  For there is nothing in this clause to indicate sex unless it be the word ‘President.’” [The Constitution repeatedly refers to the President using “he,” “him, and “his.”]

“The claims of males to be alone entitled to be ‘Senators’ and ‘Representatives,’ is believed to rest alone upon the masculinity of the word, the single ‘he,’ and the common sense and understanding of men.”  [The Constitution refers to Senators and Representatives using “he,” e.g., “an Inhabitant of that State in which he shall be chosen.”]

“Our advocates for equal ‘Woman’s Rights’ might consider this a very narrow definition; and they might even urge that the pronoun ‘he,’ in other clauses, does not protect woman from the severest criminal statutes [art. IV, sec. 2 requires extradition of one charged with felony or treason “on Demand of the executive Authority of the State from which he fled.”  If this provision applies only to males, women could avoid liability for those severe crimes by fleeing to a different state.  But advocates of women’s rights would not claim that the use of “he” protects women from extradition.]; nor would it deprive woman of the guaranties accorded to ‘him’ and ‘himself,’ standing for the antecedent of ‘person’ in the Vth and VIth amendments.”  [The Fifth Amendment accords a guaranty against self-incrimination using the word “himself.”  The Sixth Amendment accords witness and counsel guarantees using the words “him” and “his.”  Advocates of women’s rights would not accept that those words deprive women of the guarantees.]

How, then, should we interpret these provisions?  Some originalists argue that we should interpret the Constitution as the average American English speaker would have at enactment.  This might lead to the conclusion that only men can be President, Vice President, Senator and Representative.  After all, Paschal refers to the “common sense” interpretation of “he” in the provisions that apply to members of Congress.  And the average English speaker in 1789 America might have believed that references to “he,” “him,” and “his” in the relevant provisions meant that only males could hold those positions.  The average speaker might have considered it absurd to think that women were authorized to hold those positions given their limited political power in the eighteenth century, just as some originalists consider it absurd that American English speakers would have thought that “because of sex” in Title VII covered homosexuals in 1964 given criminal laws of the period.  Some originalists also look to early practices to discern original meaning, such as early claims practices under Title VII, and no woman ran for the House until 1866 or for president until 1872. 

Paschal, however, asserts that the same “common-sense tests” (plural) used to interpret “all other instruments” should apply when interpreting the Constitution: 

“That is to construe it by its language, nature, reason, and spirit, objects and intention, and the interpretations of contemporaneous history, having an eye to the old law, the mischief and the remedy.  See Story’s Const. chapters three, four, and five, and voluminous references.”

In a word, pluralism.

MICHAEL RAMSEY ADDS:  Here is a biographical sketch of George W. Paschal, who seems to have had quite an interesting life.

10/27/2020

The Confirmation of Amy Coney Barrett
Mike Rappaport

There is much to say about the confirmation to the Supreme Court of Amy Coney Barrett.  Here are two observations on its implications for originalism.  First, Barrett was an unambiguous originalist at the time of her nomination, more so than any other justice.  Gorsuch was an originalist, but he had not written so clearly in favor of it.  Kavanaugh said he was an originalist, but had not described himself in print that way.  If memory serves, Thomas and Scalia did not have paper trails in favor of originalism.  Bork did, but he was not confirmed.  But Barrett had several articles on originalism and acknowledged it proudly at the hearings.   

Second, Barrett appears to represent the fourth originalist on the Court.  Thomas and Gorsuch are clear originalists and Kavanaugh appears to be one (but time will only tell how much).  Roberts and Alito are at most fellow travelers.  So with Barrett, that makes four justices.  Originalists are now a plurality on the Supreme Court, a larger voting block than the three progressive nonoriginalists. 

That last line is worth repeating.  There are now more originalists on the Court than progressive nonoriginalists.  Wow, I never really imagined that I would live to see it.  

Of course, there is not a majority of originalists.   Not yet, anyway.  Of course, this might be the highwater mark, but that is not inevitable.  

Guest-Blogging at Volokh Conspiracy
Michael Ramsey

This week I will be guest-blogging at Volokh Conspiracy on my forthcoming article Originalism and Birthright Citizenship.

Here is my initial post.

I'm grateful to Eugene Volokh and everyone at the Conspiracy for the invitation.

10/26/2020

Cass Sunstein: Textualism and the Duck-Rabbit Illusion
Michael Ramsey

Cass R. Sunstein (Harvard Law School) has posted Textualism and the Duck-Rabbit Illusion (16 pages) on SSRN.  Here is the abstract:

Textualists insist that judges should follow the ordinary meaning of a legal text, and sometimes texts have an ordinary meaning that judges can follow. But sometimes texts have no such thing, in the sense that they are reasonably susceptible to two or more interpretations. Some textualists fall victim to something like the duck-rabbit illusion. They genuinely see a duck; they insist that a duck is the only thing that reasonable people can see. Their perception is automatic, even though it might have been primed, or a product of preconceptions. But reasonable people might well see a rabbit. Various approaches are possible to determine whether we have a duck or a rabbit; most of them do not turn on the text at all.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended" and has additional comments, a picture of a duck-rabbit, and more.

I don't doubt there are duck-rabbits.  But not, I think, very many of them.

10/25/2020

James Cleith Phillips & John Yoo: The Original Meaning of Presidential Impeachment
Michael Ramsey

James Cleith Phillips (Chapman University -- Dale E. Fowler School of Law) and John Yoo (University of California at Berkeley School of Law) have posted You're Fired: The Original Meaning of Presidential Impeachment (Southern California Law Review, Vol. 94, No. 4, 2021) (73 pages) on SSRN.  Here is the abstract:

With just the third impeachment of a President in the nation’s history, questions about the Constitution’s original meaning of impeaching a President are again salient. Unlike other constitutional provisions, because the Supreme Court has deemed impeachment the ultimate political question, neither much historical practice nor case law informs our understanding of the Impeachment Clause. Thus, the original meaning takes on great weight. Further, previous scholarships has only either incidentally or in piecemeal fashion looked at the originalist evidence, and thus been akin to the tale of the blind men each feeling a different part of an elephant and consequently coming to wildly differing views as to what was before them.

This article systematically examines that original meaning in light of the Philadelphia Convention debates, the Federalist Papers (and Anti-Federalist responses), and the state ratifying conventions. What is more, this article becomes the first in American legal scholarship to both provide a corpus linguistic analysis of the term “high crimes and misdemeanors” and to publish findings from the Corpus of Early Modern English (COEME).

In short, the article finds that the original meaning of presidential impeachment was both narrower and broader than the criminal law in that not every crime was an impeachable offense, but not every impeachable offense was a crime. Further, the corpus analysis shows that the term the Founders adopted was not by accident but was an established term of art in Britain. The article then applies these findings to the impeachment of President Trump, providing an in-depth analysis of the proceeding in light of the Constitution’s original meaning, critiquing arguments made on both sides.

10/24/2020

Lorianne Updike Toler: Law Office Originalism
Michael Ramsey

Lorianne Updike Toler (Information Society Project, Yale Law School) has posted Law Office Originalism (103 pages) on SSRN.  Here is the abstract:

The Constitution’s framing history features heavily in Warren and Burger Supreme Court opinions overturning established precedent. This led Alfred Kelly in 1965 to famously criticize the Court for doing “law office history,” cherry picking shallow historical evidence to achieve a desired result. With the elevation of William Rehnquist to Chief Justice in 1986, neo-critics hurled the epithet anew at both the Rehnquist and Roberts Courts—particularly at the self-identified Originalist Justices who claim Framing history should drive interpretation and cabin judicial discretion. Although Originalism as “law office history” has become an a priori assumption for much of legal academe, none has provided a systematic review of these claims, including the Supreme Court’s historical methodology and its purchase power to cabin judicial will.

This empirical study—which canvases the entire universe of 299 references to the Constitutional Convention in 239 cases—seeks to supply that deficiency. Based on the results gathered in its prequel, Pre-Originalism, and to test Originalism’s constraint function, this study hypothesizes that 1) the Court’s historical methodology is generally bad, 2) that Originalist Justices’ historical methodology was no better; and 3) that Justices’ engagement in better historical methodology would result in significant political deviations. In that the Court references the Convention without having looked at the primary record or, indeed, any source nearly half of the time, over-relies on non-historical secondary sources for context, and fails to cite to both primary and secondary sources in all but a small minority of its references, the first hypothesis was confirmed. Likewise, based on a comparison of three Originalist Justices to three other Justices with jurisprudential commitments and the Court overall through, the second hypothesis was also confirmed. Finally, through a regression analysis comparing judicial methodology to historical depth, an interactive variable of political deviation, and several other controls, the third hypothesis was rejected in part, especially for Justice Thomas. However, in that the regression analysis shows that deeper and more primary Framing sources can create significant political deviations for the two surveyed Justices without jurisprudential commitments and demonstrated non-significant trends for all other surveyed Justices other than Justice Thomas, the study suggests that better history may have some constraining potential. In particular, better historical methodology, particularly citing more primary sources, could be associated with Justices deviating from expected political outcomes in significant ways.

To meet these obligations and improve the constraint function of any use of history, Originalism included, this article makes multiple practical suggestions for improving the historical methodology of the Court and the greater legal community.