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36 posts from October 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.


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.


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.


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.


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.


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.


John McGinnis on the Confirmation Hearings
Michael Ramsey

At Law & Liberty, John McGinnis: A Clash of Constitutions. From the introduction: 

The Senate hearing on the nomination of Amy Coney Barrett to the Supreme Court shows that we effectively have two different Constitutions today, because the interpretive methodologies of Democratic and Republican political actors diverge so dramatically. Republicans embrace originalism as a mode of interpretation. Democrats aspire to a method that bends the Constitution toward “the moral arc of the universe” where that arc traces the parabola of progressive politics.

The implications of this divergence are profound both for the nation and for academic debates over originalism. We are in a period of political polarization unprecedented since at least the New Deal and probably since the 19th century. Successive waves of partisanship have now engulfed our fundamental document, threatening a kind of legal instability we have not seen in the last 150 years. It will likely get worse, particularly if Democrats go through with threats of court packing, which will inevitably beget more and more court packing, turning our highest tribunal into something more resembling the British House of Lords. Academically, the dramatic divergence shows that the positive argument that originalism should be followed simply because it is our law is inadequate because high officials do not agree on the rule of recognition—that is, the standard by which we determine what constitutes constitutional law.

And on the second point, from further along:

The clash of constitutions displayed at the hearing also has implications for the debate about how we ought to justify originalism. Will Baude and Stephen Sachs, two excellent young scholars, have suggested a positivist basis for originalism. According to their argument, we should follow originalism because it is the law in the sense that the great positivist H.L.A. Hart meant law. That is, originalism is the rule of recognition by which officials determine the law. To be sure, Baude and Sachs concede there may be disagreements about exactly what originalism requires, but they claim that there is a consensus in its favor among judges. They support their views largely by reference to Supreme Court opinions where they argue that justices—even modern left-liberals—gesture to originalism. Mike Rappaport and I have both criticized this argument, suggesting that in many important cases, justices fail to make good-faith efforts to follow originalism.

But judges are not the only officials responsible for determining the content of the Constitution, as Baude concedes. Legislators and presidents are also high government officials who make such determinations all the time, and who implicitly or explicitly embrace a rule of recognition. And the rule of recognition guiding the important officials of the Democratic Party today is emphatically not originalism. This sociological fact (and the Hartian view of law is ultimately rooted in such facts) also counts heavily against the notion that there is an official consensus in favor of originalism.

That lack of consensus does not mean we should abandon originalism. Originalism is certainly an important contender for the rule of recognition, as Michael Ramsey has observed, and the Supreme Court has at times in our history regularly followed it. But to justify originalism as the strongest contender we need to appeal to normative arguments of the kind that Mike Rappaport and I and others have made. Originalism is the best rule for interpreting the Constitution, even if some diverge from it.


More on Whether The Original Meaning Allows for Female Presidents
Mike Rappaport

During the Gorsuch confirmation hearings, the question came up whether the original meaning allowed women to become President, because the Constitution referred to the President as a "he."  I wrote a post saying that Gorsuch had flubbed the question.  Gorsuch could have argued quite persuasively that the original meaning permitted women to become President, but instead attempted to defensively avoid the question.  Here is an excerpt:

Sure, he indicated that women could be President, but gave no reason for believing the original meaning allowed it.  His answer appeared to suggest that originalist could only believe this by violating their interpretive principles.

Significantly, there was a clear answer to the question.  When the Constitution was written (and until recently and even today to an extent), the term “he” had at least two meanings.  It could mean a male or it could mean any person, whether male or female.  (Similarly, the term “mankind” referred to all people, not just men.)

In fact, some of the constitutional provisions strongly suggest that women were covered by these terms.  Consider the Sixth Amendment, which provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Clearly women could be criminal defendants and clearly they would enjoy the right to confront witnesses, to compulsory process, and to the assistance of counsel.

Thus, one need not depart from the text of the Constitution to permit women to be President.  One needs only to read the term “he” to have one of the meanings it had at the time of the Constitution.  Thus, originalism allows women Presidents.  In fact, the modern contemporary meaning view – which holds that words in the Constitution have their modern meanings – might prohibit women Presidents, since today some people argue that ”he” only refers to males.

Recently, I was discussing this blogpost on a constitutional law listserv.  One of the participants criticized my argument on the ground that while “he” could mean either “he” or “he or she,” the fact that it meant “he or she” in the sixth amendment did not necessarily mean it meant “he or she” as to the presidency.  This is true, although the fact that it means “he or she” as to the sixth amendment does provide some evidence that it means the same as to the presidency.

But based on this objection, I explored the issue further, leading to me conclude with much greater confidence that the Constitution’s original meaning allows women presidents.

The additional evidence comes from the qualifications language.  The Constitution states the qualifications of someone to be President in Article II, section 1, clause 4.  It states the three qualifications of citizenship, age, and residency:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

So this clause suggests that sex is not a qualification, since it is not mentioned. 

Now, it might be argued that the Constitution could impose other qualifications in other places.  And therefore Article II, Section I, which says of the president “He shall hold his office during the Term of four years,” might impose another qualification. 

This is a theoretical possibility, but I think a very weak argument.  If one were to read this clause as imposing a qualification based on sex, that qualification would be oddly written and oddly placed.  If one was intending to prohibit women from becoming Presidents, the most obvious way to do so would have been to add it to the express list of qualifications in Article II, section 1 by saying “only men can become President.”  By contrast, the alleged prohibition on women serving as President is in another clause.  And it is allegedly imposed indirectly by saying “He shall hold his office.”  This strongly suggests that we should read the “he” as having the meaning that includes females.

In addition, the express list of qualifications in Article II, Section 1 suggests that women can be President in another way.  It says “No person except a natural born Citizen . . . shall be eligible to the office of President.”  If the authors were implying that women could not be President based on the “he” in Article II, section 1, it would have made sense to say something like “No man except a natural born Citizen . . . shall be eligible . . . .”  That would have more strongly implied a prohibition on females.  By saying “No person,” however, the Constitution suggests that the presidency is open to all persons. 

One of the benefits of debate is that it improves the quality of our views.  This challenge significantly improved my argument.

Lawrence Solum on Judge Barrett and Originalism
Michael Ramsey

In the Los Angeles Times, Lawrence Solum (Virginia/Legal Theory Blog): Judge Barrett is an originalist. Should we be afraid?  From the introduction: 

Originalism, the judicial philosophy of Supreme Court nominee Amy Coney Barrett, and her mentor, the late Justice Antonin Scalia, is once again the subject of intense interest and public debate.

Originalists believe that judges are bound by the constitutional text and that its words should be read as the public would have understood them at the time each provision was written.

Why would anyone object to this common-sense idea?

And on some key points: 

One worry is that originalist justices will overrule modern decisions that Americans hold dear.

One such case is Brown vs. Board of Education, the landmark Supreme Court case that struck down racial segregation. But originalism not only supports the ruling in Brown; an originalist Supreme Court would never have propagated the separate but equal doctrine in the first place.


Another worry is based on the false assumption that originalists want the world to stay the same as it was in 1787 and that they would ignore the words of the Constitution, asking instead, “What would James Madison do?”

This misunderstanding leads to truly silly arguments. Is the 2nd Amendment restricted to muskets? No, because the word “arms” includes all weapons that can be carried, including modern rifles and pistols. Would the 4th Amendment prohibition on “unreasonable searches” allow the government to send in drones and robots to search your home? No, the word “search” includes robot searches, drone searches, and other kinds of searches we cannot yet imagine.

Originalists believe that judges are bound by the constitutional text, which can be applied to contemporary circumstances in ways that James Madison could not have foreseen.

In conclusion:

Two hundred and forty years ago John Adams wrote of the importance of “a government of laws and not of men.” This ideal is not some musty platitude whose time has passed. If the events of recent years show anything, it is that we should fear the arbitrary rule of individuals, who do what they want and not what the law requires. The core of originalism is the rule of law. And that is not something we should fear.