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39 posts from October 2020


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.


There's a Constitutional Limit on Borrowing by Congress Even Without a Balanced Budget Amendment
Andrew Hyman  

Just because there’s no balanced-budget amendment in the U.S. Constitution doesn’t mean there’s no limit on Congress’s power to borrow money.  This point deserves special mention now, as we may be on the verge of another large spending bill that would necessitate much more borrowing.  The first two enumerated powers of Congress are all about money.  Here they are:  

[1] The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [and]

[2] To borrow money on the credit of the United States….<

Professor Mike Rappaport recently wrote a post discussing the long-running controversy about whether or not the first of these two clauses allows Congress to spend money on aspects of general welfare that are not covered by the enumeration later in the Constitution.  I will assume here that the first clause above does allow Congress to spend money on aspects of general welfare not covered by the enumeration of powers later in the Constitution.  This has been the predominant view for centuries, though Professor Rappaport points out some reasons for skepticism.  President James Monroe had a policy of spending for “purposes of common defense, and of general, national, not local, or state, benefit.”  Admittedly, Monroe’s view of the spending power was not as expansive as Alexander Hamilton’s, but still Monroe favored going beyond the enumerated aspects of the general welfare, and Monroe’s approach prevailed among later administrations as well.  

A big difference between the first and second clauses above is that the second clause does not broaden how the money can be spent.   Accordingly, Congress can use either borrowed money or tax revenue to pay for the armed forces, but can only use tax revenue to pay for things like entitlements (e.g. Social Security, Medicare, and Medicaid which presumably do not fall under any congressional power enumerated later in the Constitution).  

In FY2019, Congress spent about 4.5 trillion dollars, while collecting about 3.5 trillion dollars in taxes.  About half of the spending went toward Social Security, Medicare, and Medicaid. So that’s fine because half of 4.5 is less than 3.5.  But this year, we may well exceed the constitutional limit, assuming that checks in the mail from Uncle Sam do not regulate interstate commerce (checks are not regulations, and they do not help implement any regulations either).  

I haven't found much discussion of this subject so far.  A commenter at the Volokh Conspiracy blog (not me) wrote: "Even if the spending clause authorized Congress to spend *tax* money for unenumerated purposes, there is no general authorization to spend *borrowed* money – that has to come from the enumerated powers (eg, Congress can regulate interstate commerce, so it can spend borrowed money to enforce the regulations).  It’s fair to say that a lot of government spending involves borrowed money – how to justify spending borrowed money on all the programs not mentioned in the Constitution?"  That's a good question!   

And there’s another twist to this story.  To the extent that Congress relies upon the 16th Amendment to collect income taxes, that revenue may need to be spent much like borrowed money, because the 16th Amendment does not explicitly authorize spending on unenumerated objects.  So Congress may well have already overstepped its spending limit, and if Congress wants to keep spending as much on unenumerated stuff as it spends now, then it would have to dramatically increase taxes under Article I, Section 8, Clause 1 which (I assume) authorizes spending on anything pertaining to the general welfare.  Alternatively, Congress may have meant the word “taxes” in the 16th Amendment to be a subset of the “taxes” mentioned in Article I, Section 8, Clause 1 in which case the income tax revenue could be spent on unenumerated aspects of the general welfare.

Bryan Wildenthal: The Speaker of the House and Presidential Succession
Michael Ramsey

Bryan H. Wildenthal (Thomas Jefferson School of Law) has posted The Speaker of the House and Presidential Succession: An Argument and Addendum (19 pages) on SSRN.  Here is the abstract:

Is Nancy Pelosi, as Speaker of the House of Representatives, properly and constitutionally second in line for the presidency? The question has urgent new relevance in light of President Donald Trump’s recent infection with the coronavirus and the related spread of infections in the top levels of his administration. If a double vacancy occurred due to the death or incapacity of both Trump and Vice-President Mike Pence, who would be next in line?

The Presidential Succession Act, passed by Congress 73 years ago, says that Speaker Pelosi would take over as Acting President.

But an essay by Professor Jack Goldsmith of Harvard Law School (co-authored with Ben Miller-Gootnick) claims there is “a powerful (though not airtight) argument” that placing top congressional leaders like Pelosi in the line of succession violates the Constitution. Goldsmith, like many others, relies heavily on a 1995 law review article by Professors Akhil Reed Amar and Vikram David Amar.

This paper responds to the Goldsmith and Amar articles. It contends that the argument touted by Goldsmith and the Amars is not only “not airtight,” it is not even persuasive. It is stunningly weak. Any challenge to Pelosi in the event of a double-vacancy crisis would be a dangerous and reckless usurpation.

The paper argues, in particular (in the addendum expanding on the Jurist essay), that careful readings of the Article VI Oath and Religious Test Clauses, and of Section 3 of the 14th Amendment, powerfully support this interpretation of the Constitution and boomerang devastatingly against the argument set forth in the 1995 Amar article.

Some related thoughts on this blog, tending to agree with Professor Wildenthal, are here.  The more I think about it, the more I think he's right.  The succession clause says only that Congress must pick an "Officer" for the succession, not that it must pick an "Officer under the United States" (or some similar formulation that might be read to include only executive officers).  The Speaker is expressly called an "Officer" in the Constitution (Art. 1, Sec. 2).  While there might be a separation-of-powers problem with the Speaker simultaneously serving as Speaker and acting President, the current succession act takes care of that problem by requiring the Speaker first to resign from Congress.


Torres v. Madrid: Possibly a Harder Cases than it Looks?
Michael Ramsey

Torres v. Madrid, argued to the Supreme Court last week, asks whether an attempted but unsuccessful detention by police is a "seizure" under the Fourth Amendment.  In a prior post, I said this seems (from an originalist perspective) sort of obviously true, as that was the eighteenth century common law rule.  But oral argument suggests otherwise, as SCOTUSblog recounts


For the conservative justices attracted to the officers’ narrow “seizure” definition, the existence of contrary precedent is only part of the problem. There is the added fact that Hodari D. is an originalist precedent written by Justice Antonin Scalia. In his opinion for the court, Scalia wrote that, under the common law at the time of the Framing, “the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient” to constitute a seizure. This prompted Justice Brett Kavanaugh to press Standridge [attorney for the respondent] to acknowledge that, “you’re arguing, as I understand it, that Justice Scalia and really all nine justices in that case were wrong about the original meaning of the Fourth Amendment.” Kavanaugh similarly pushed Taibleson [attorney for the United States supporting petitioner] on this question, with Taibleson ultimately affirming that the United States’ official position was that Scalia got the history right. Sotomayor fanned the flames, wryly noting that Scalia “very much was an advocate of the common law and … quite well informed about it generally.”

With this array of originalist forces against him, Standridge contended that the court should “reject historic relics that are not suited to the modern era” in favor of rules that “have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions.” Curiously, it was the court’s conservatives who seemed most receptive to this argument. Gorsuch questioned the applicability of the Framing-era cases that, he said, primarily concerned “Dickensian debt collection practices.” Thomas suggested that the cases might be distinguishable because they arose outside the criminal context and involved direct applications of force. Justice Samuel Alito pointed out that none of the cases involved shootings. There seemed to be an irony here in light of the proceedings unfolding at that same moment across the (virtual) street. At the same time that Judge Amy Coney Barrett was extolling the clarity of originalism in her confirmation hearings in the Senate, the court’s most prominent originalists seemed to be suggesting that Framing-era precedents offered little insight into the proper application of the Constitution in a modern context.


The justices returned to more familiar territory as they sparred over the plain meaning of the term “seizure.” The officers’ strongest textual argument is that the term’s ordinary meaning does not apply to unsuccessful attempts to restrain someone. To illustrate the point, Gorsuch deployed the day’s most extreme hypothetical, conjuring up a driver who “blast[s] through” roadblocks “at 100 miles an hour” with police “bazookas” (!) firing all around, and yet suffers only a scrape. Alito picked up the thread, asking about “a baseball pitcher [who] intentionally beans the batter.” Thomas added a question about someone hit by “a snowball.” None of these instances, the justices suggested, fit the term “seizure.” The examples prompted Kavanaugh to challenge Corkran [attorney for the petitioner] to explain “why shouldn’t we just follow the ordinary usage of the term ‘seizure.’” In an apparent appeal to the justices aligning against her, Corkran responded that “it’s the ordinary meaning at the time of the founding that controls.” ...

It's not going to be a good look for the originalist Justices if they favor the side that relies on an argument "that the court should 'reject historic relics that are not suited to the modern era' in favor of rules that 'have evolved through the process of interpreting the Fourth Amendment in light of contemporary norms and contemporary conditions.'”

RELATED:  At Volokh Conspiracy, Josh Blackman has an amusing side note on the oral argument: Justice Kavanaugh asks his former clerk, Assistant SG Rebecca Taibleson, if Justice Scalia, her other former boss, was correct about originalism.


What Has Athens to Do With Philadelphia?
Chris Green

I have posted What Has Athens to Do With Philadelphia?, part of a Faulkner Law Review symposium on Lee Strang's Originalism's Promise: A Natural Law Account of the Amertican Constitution, to SSRN. Here is the abstract:

Lee Strang’s Originalism’s Promise: A Natural Law Account of the American Constitution gives a smooth, integrated account of all of the major issues of constitutional theory. He promises an account of the Constitution that simultaneously fits (a) the law of the early republic, (b) the precedentially-governed law of today, and (c) the moral principles of the natural law. While I agree with Strang that the meaning expressed by the text according to its original legal conventions morally binds officeholders today, there are problems if we too-tightly integrate the three realms of moral reality, the Constitution itself, and precedent. We can sharply distinguish them based on necessity and time. Moral reality and the nature of human flourishing—i.e., the sorts of things investigated by the philosophers of Athens and their intellectual descendants—are necessary, the same in every possible world that humans might inhabit. Our Constitution, by contrast, while it is fixed and unchanging, has the nature it has only because of the historically contingent events in Philadelphia in 1787, and it remains our Constitution today only because of the contingent practices of those who claim fidelity to it. Finally, the precedentially-embodied law of today is not just contingent, but properly changes; officeholders at different times and with different roles will properly apply different evidentiary standards to different evidence.

Making this three-fold distinction would promote both moral candor and constitutional fidelity. The Constitution of the Founding obviously did a very poor job of coordinating enslaved Americans’ interests in human flourishing with others’ needs. But officeholders today still swear to defend that same Constitution. Instead of an explanation of why the Constitution has always promoted human flourishing, we need the moral norm against oath-breaking. Instead of filtering precedent morally, we need a moral requirement that officeholders stay silent about the Constitution unless they know whereof they speak, i.e., with enough evidence given their particular roles and stakes.

As always, comments are welcome!

There is No Independent Spending Power: A Response to Mike Ramsey
Mike Rappaport

Mike Ramsey recently criticized my view that the Constitution does not confer any independent spending power.  While Mike and I have been disagreeing about this for some time, I thought I would explain my view.

The Constitution provides “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” 

Mike reads this as conferring the power on Congress to spend for the general welfare – what I shall call “the spending interpretation.”  I read it as conferring the power to tax on Congress – what I shall call “the tax interpretation.”  I agree that both interpretations have weaknesses, but I believe the weaknesses in the spending interpretation are much, much greater. 

1. The spending interpretation finds in this clause not merely the power to tax, but also the power to spend for the general welfare. This spending power is an enormous power, arguably one of Congress’s most important powers. Yet, it is not stated in a straightforward way.  Instead, it is found by implication.  This counts strongly against the spending interpretation.  Lawgivers do not hide elephants in mouseholes.

If the enactors had intended to confer an independent spending power, it would have been much more straightforward to say, “Congress shall have the power to spend for the general welfare” (or if you will, to provide for the general welfare).  But the Constitution does not say that.  It says you can tax in order to provide for the general welfare, the common defense and to pay the debts of the U.S.  If you were intending to confer an independent spending power, it is unlikely you would write it this way.

By contrast, the tax interpretation makes sense of the way that the clause is written.  The Framers were attempting to confirm that the taxing power could not be used to regulate, but only to raise funds.  Otherwise, the taxing power could have been used to regulate intrastate commerce (by imposing very high taxes intended to discourage intrastate activities) and to assert other nonenumerated powers under the guise of the taxing power.  When the Constitution used the language “to pay the Debts and provide for the common Defence and general Welfare of the United States,” it was saying that the funds need to be employed in the exercise of Congress’s other enumerated powers. 

Mike argues that “to pay the Debts and provide for the common Defence and general Welfare of the United States” does not say “the enumerated powers.”  True enough.  And the language would have been clearer if it had said “the enumerated powers.”  But this weakness of the tax interpretation is much less significant than the weaknesses of the spending interpretation.  

When one reflects upon it, the language “to pay the Debts and provide for the common Defence and general Welfare of the United States” is not a bad way to paraphrase Congress’s overall enumerated powers.  After all, Congress’s enumerated powers generally concern the general welfare and the common defense.   

Moreover, in using this language, the Framers were not acting on a blank slate.  The Articles of Confederation provided that “All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the united states in congress assembled, shall be defrayed out of a common treasury.”  I interpret this language in the Articles, as did David Curie, as allowing spending only for Congress’s enumerated powers.  It would seem that Mike has to interpret this language to confer on the Congress under the Articles the full power to spend for the general welfare.  Given the weakness of the national government under the Articles, it would be quite surprising for Congress to have had that power. 

2. Another problem with the spending interpretation is that it assumes the Framers would have conferred a significant power – the spending power – with only the very general and vague limitation of being for “the general welfare.” This vague language has been read, not unreasonably, as permitting the courts only very limited authority to strike down spending as not being in the general welfare.

But that is not how the Constitution’s enumerated powers normally read.  They do not as a rule use vague language like “the general welfare.”  Instead, they use more determinate language such as “to regulate commerce among the several states” or “to raise and support armies.”  This provides additional reasons not to read language stating the purpose of taxes as conferring an independent power to spend money for the general welfare. 

3. Yet another problem with the spending interpretation is that it involves significant and peculiar redundancies. The spending interpretation reads “to pay the Debts and provide for the common Defence and general Welfare of the United States” as providing independent spending authority. This is oddly redundant.  The clause immediately adjacent to the taxing/spending clause allows Congress “to borrow Money on the credit of the United States.”  Clearly, this power includes the authority to pay the debts from that borrowing.  So it is not clear why the taxing/spending clause needed to provide that authority  Several other clauses grant authority to Congress to conduct the common defense.  So again it is not clear that the tax/spending clause adds anything. 

The only language where there might not be complete (or virtually complete) redundancy is “the general welfare.”  Why would the clause be written to contain two redundancies and only one new source of authority?  Instead, given the two redundancies, it makes sense to read “the general welfare” as also redundant and as a reference to the other enumerated powers in the Constitution.   

February 2021 Originalism Works-in-Progress Conference in San Diego
Michael Ramsey

An announcement from the Center for the Study of Constitutional Originalism at the University of San Diego School of Law:

We are pleased to present the complete list of papers and commentators for the Twelfth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 19-20, 2021 at the University of San Diego Law School.

Evan Bernick (Georgetown), Antisubjugation and the Equal Protection of the Laws

            Commentator: Michael McConnell (Stanford)

Richard Epstein (NYU), Patent Originalism

            Commentator: Christina Mulligan (Brooklyn)

Richard Fallon (Harvard), The Chimerical Concept of Original Public Meaning

            Commentator: Gary Lawson (Boston University)

Jason Mazzone (Illinois) & Cem Tecimer (Harvard), Originalism and Inter-Constitutional Interpretation

            Commentator: Jack Balkin (Yale)     

Nicholas Parrillo (Yale), A Critical Assessment of the Originalist Case Against Administrative Regulatory Power

            Commentator: Jennifer Mascott (Scalia)

Maximilian Crema & Larry Solum (Virginia), The Original Public Meaning of the Fifth Amendment Due Process of Law Clause

            Commentator: Tara Grove (Alabama)

Ernest Young (Duke), Dying Constitutionalism And The Lost Years Of The Fourteenth Amendment

            Commentator: Jamal Greene (Columbia)

The selection of the papers was difficult, as there were many worthy submissions.  In the end, the selections were made based on both individual merit as well as the need to have a balanced group of papers on originalism.

In addition to the authors and commentators, the members of the Originalism Center should also be in attendance.  The members include: Larry Alexander, Laurence Claus, Donald Dripps, Michael Ramsey, Michael Rappaport, and Steven Smith.

We are excited to have such a distinguished lineup of authors and commentators, and again we invite all scholars who are interested in originalism to attend and participate in the conference by reading the papers and joining the discussion. The Center would be happy to pay for the principal meals for those attending the whole conference but not giving a paper or serving as a commentator.

This year we are not sure how the conference will be held.  It will either be held as a zoom conference or as a hybrid in person/zoom conference.  We will let people know as soon as a decision is made.   


Judicial Power to Deliberately Prolong a Misinterpretation of the Constitution Does Not Exist
Andrew Hyman

During his 2018 confirmation hearing, Justice Brett Kavanaugh correctly explained where the duty to follow judicial precedent comes from:  

Precedent is not just a judicial policy. Precedent comes right from Article III of the Constitution. Article III refers to the "judicial power." What does that mean? Precedent is rooted right into the Constitution itself….As I see it, the system of precedent comes from Article III itself. When Article III refers to the judicial power shall be vested in one Supreme Court and such inferior courts as Congress shall, from time to time, establish, to my mind, the phrase judicial power […] what does that entail? […] You look at the meaning—the meaning at the time of judicial power—and you look…one source of that is Federalist 78. It's well explained that judges make decisions based on precedent, and precedent, therefore, has constitutional origins and constitutional basis in the text of the Constitution.

So let’s consider Federalist 78.  Here’s what Hamilton wrote there:  

To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them.  of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study to acquire a competent knowledge of them. Hence it is, that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges.

That last sentence shows Hamilton was speaking about following previous interpretations of “the laws,” without referring to or singling out the Constitution.  It is very possible that Hamilton was focused in Federalist 78 exclusively on statutes, because elsewhere (e.g. in Federalist 80) Hamilton contrasted the laws with the Constitution, when he asked “What equitable causes can grow out of the Constitution and laws of the United States?“  See also Federalist 81: “wherever there is an evident opposition, the laws ought to give place to the Constitution.”    

Even putting aside Hamilton’s position on the necessity of following statutory or constitutional precedents, the founders were unanimously clear about constitutional stare decisis in the text of the Constitution itself.  An ancient rule for reading legal texts is the Harmonious-Reading Canon, which says that the clauses in a legal text should be interpreted in a way that renders them compatible, not contradictory.  Justice Kavanaugh was correct that the duty to follow precedents comes from the Judicial Vesting Clause in Article III, Section I.  But that clause should not be interpreted in a way that conflicts with any other clause.  For example, if a non-originalist Supreme Court erroneously interprets the word “press” in the First Amendment to ensure a right to go to the gym and bench "press" during a pandemic, but subsequently the Court realizes its mistaken interpretation of the word “press,” then the Court is obligated to adhere to the true meaning of the First Amendment.  Otherwise, they would be inflating the judicial power in a way that conflicts with the First Amendment.  This is why I believe the Court was entirely correct in Smith v. Allwright, 321 U.S. 649 (1944):  

[W]e are not unmindful of the desirability of continuity of decision in constitutional questions.  However, when convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment and not upon legislative action this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions. This has long been accepted practice, and this practice has continued to this day.

Too bad the Court has seen fit to backtrack from this core principle.  The Court has cited various policy reasons for doing so, but they cannot defeat the constitutional command that relies upon the Harmonious-Reading Canon.  Moreover, those policy reasons are flawed, because the greatest policy danger is that the Court (or some of its members) will be tempted toward casual misinterpretations of the Constitution in the belief that they will be protected in perpetuity by stare decisis.  In the field of constitutional law, where the doctrine of precedent is weak, the necessity of binding down judges can only be accomplished via originalism, and so the argument for applying originalism in constitutional interpretation is even greater than the already-strong case for doing so in statutory interpretation.

NOTE: A technical error previously attributed this post to Michael Ramsey rather than Andrew Hyman.

FURTHER CORRECTION: That's Andrew Hyman, not Andew Hyman.