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30 posts from November 2020

11/25/2020

Eric Muller on Self-Pardons
Michael Ramsey

In The Atlantic, Eric Muller (UNC): The One Word That Bars Trump From Pardoning Himself.  From the introduction:

As Donald Trump’s tenure in office comes in for its landing, a major question is whether the president—facing questions about liability for offenses including bank and tax fraud—can pardon himself.

This might seem like the right operational question, but it is imprecise as a constitutional one. Article II of the Constitution says that the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” Did you catch that? The president has the power not to pardon people, but “to grant … Pardons” (emphasis added). So the question is not whether Trump can pardon himself. It’s whether he can grant himself a pardon.

That might seem like an odd way of putting the question, but it’s linguistically important. On the one hand, some actions can’t be reflexive—you can’t do them to yourself. Think of surrenderingrelinquishing, or handing over something. These verbs entail a transfer to someone else; the actor can’t also be the recipient.

On the other hand, countless verbs do leave open the possibility of reflexive meaning. If, for example, the Constitution had empowered the president not to grant a pardon but to announce a pardon, one would be hard-pressed to insist that the president could not announce himself as a recipient.

And from later on:

Based solely on other uses of grant in the Constitution, a person could reasonably determine that a president cannot grant himself a pardon. But in evaluating the meaning of the Constitution’s words, the text of the Constitution isn’t all that counts. The most common interpretive method these days—championed by Justice Antonin Scalia and now broadly popular among conservatives—is to look for evidence of a term’s “original public meaning.” That, theoretically, is the meaning that ordinary English speakers of the late 18th century would have attached to a given term when coming upon it in a legal document like the Constitution.

But how is one to determine this “original public meaning”? One place to begin is a law dictionary in use at the time, such as The Law-Dictionary: Explaining the Rise, Progress, and Present State of the English Law; Defining and Interpreting the Terms or Words of Art; and Comprising Copious Information on the Subjects of Law, Trade, and Government, compiled by Giles Jacob, and the most popular legal dictionary of the era. According to Jacob’s tome, a grant—which he defined only as a noun—is a “conveyance in writing of incorporeal things.” And what, in turn, is a conveyance? It is “a deed which passes or conveys land from one man to another.”

Note: “from one man to another.”

Thus, to the extent that the most popular contemporaneous law dictionary is valuable in understanding what ordinary speakers of the founding era meant by “granting,” it seems clear that they probably had in mind an interpersonal transfer.

Thanks to Bryan Wildenthal for the pointer.

Prior Originalism Blog discussion of this issue:

Michael McConnell, guest-blogging: Further Thoughts on the President's Self-Pardon Power

Andrew Hyman: The President May Not "Grant" Himself a Pardon

Michael Ramsey: Tribe versus Tushnet: Can the President Pardon Himself?

Mike Rappaport: Can the President Pardon Himself?

11/24/2020

David Upham on the Citizenship Clause
Michel Ramsey

David Upham sends this comment: 
 
 
Your implied "if any" is almost explicit in Gassies v. Ballon, on which the merely declaratory Citizenship Clause was partly based.
 
In this case the court is of opinion that the jurisdiction can be sustained. The defendant in error is alleged in the proceedings to be a citizen of the United States, naturalized in Louisiana, and residing there. This is equivalent to an averment that he is a citizen of that state. A citizen of the United States, residing in any state of the union, is a citizen of that state.
 
That opinion and that holding had been cited with approval in Justice Curtis's dissent in Dred Scott.
 
In Gassies v. Ballon, (6 Pet., 761,) the defendant was described on the record as a naturalized citizen of the United States, residing in Louisiana. The court held this equivalent to an averment that the defendant was a citizen of Louisiana; because a citizen of the United States, residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in Missouri at the date of the writ. If he did then reside there, and was also a citizen of the United States, no provisions contained in the Constitution or laws of Missouri can deprive the plaintiff of his right to sue citizens of States other than Missouri, in the courts of the United States.

Citizenship and Almond Joys
Andrew Hyman

This blog post is in reply to Mike Ramsey’s recent post about birthright citizenship.  The Citizenship Clause says, “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens…of the state wherein they reside.”  In my opinion, this means if you’re born or naturalized while domiciled outside the states, then you’re not both (1) born or naturalized in the United States, and (2) subject to the jurisdiction of the U.S. 

Mike disagrees, writing that it would be plausible to read the quoted sentence like this: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens…of the state, if any, wherein they reside.”  Mike considers the words “if any” to be implicit, and he gives an analogy:

Suppose I tell my kids: if you eat your dinner, you can have a slice of pie and the candy in your pocket.  One kid does not have any candy in his pocket.  In my view (and, I'm sure, in his), he can still have pie.  I meant "...and the candy, if any, in your pocket."  Having candy in his pocket isn't a prerequisite for having pie; it's just a prerequisite for having candy.

I suggest we slightly modify the statement: “if you eat your dinner, you can have a slice of pie and the Almond Joy in your pocket.”  Here I have replaced “candy” with “Almond Joy” because the latter is binary (either you have the Almond Joy in your pocket or you don’t), whereas the word “candy” could be anything from zero to lots and lots.  The Citizenship Clause is also binary; either you’re born in a state or you’re not.  I agree with Mike that the offer by the parent probably does suggest that a kid with no Almond Joy in his pocket would be entitled to pie if he finishes his dinner.  But, I also think that the parental statement would mistakenly assume that the kid did have an Almond Joy in his pocket.  That mistake might not vitiate the offer, but it would still be a mistake, and I don’t think it’s proper to interpret a clause in the Constitution as mistaken, especially when there’s a plausible non-mistaken interpretation available. Sometimes it is okay to judicially correct an error in a statute (e.g. by inserting “if any”), but only if “failing to do so would result in a disposition that no reasonable person could approve” (per Justice Scalia).  If I am correct that it’s not appropriate to imply the words “if any” into the Citizenship Clause, then “the United States” in this context must include only the states, because I do not think any other meaning would make sense in the Citizenship Clause.  

Mike assumed that I believe national citizenship “disappears if one moves outside of the states,” but I don’t believe that. The Citizenship Clause is all about who gets citizenship, not about who loses citizenship.  Senator Jacob Howard was a lead author of the Citizenship Clause, and he explained: “I take it for granted that when a man becomes a citizen of the United States under the Constitution they cannot cease to be a citizen, except by expatriation or the commission of some crime by which his citizenship shall be forfeited."  I agree with Howard.

Mike suggests that the drafters could have adopted my interpretation by writing "... are citizens of the United States and of the state in which they were born."  But, actually, that would have removed the guarantee of state citizenship when a citizen of one state moves to another state, and I believe that guarantee is an important part of the Citizenship Clause.  Moreover, this language that Mike suggests would no longer require that constitutional birthright citizenship be unavailable to people whose domicile is outside the states.  Also, this language Mike suggests would be just as susceptible to improper insertion of the words “if any” like this: "... are citizens of the United States and of the state, if any, in which they were born."

 Mike’s draft article acknowledges that the framers wanted to exclude from constitutional citizenship people born in places under temporary U.S. control, so I’m not sure it would have been a big leap in their minds to exclude from constitutional citizenship people born in places under temporary federal control that would soon become states.  The lead definition of “citizen” in Bouvier’s Law Dictionary was “One who, under the constitution and laws of the United States, has a right to vote for representatives in congress, and other public officers….”  People in the territories obviously could not do that, and hence it would have been rational to not consider them “citizens.”  As Iowa Congressman James F. Wilson said during debate on the Fourteenth Amendment, “A citizen of the United States is always a citizen of the state in which he resides….” Mike is correct that “Excluding the territories from the citizenship clause would leave persons of African descent in D.C. and the western territories unprotected,” but white people in those places would be equally unprotected, and neither white people nor black people in those places would be subject to the great evil that the Fourteenth Amendment was meant to address: racist state governments.  Moreover, Congress could extend citizenship to them by statute, having overturned the citizenship holding in the Dred Scott case which involved a man who had been born in the state of Virginia; Mr. Scott was born in Southampton County, Virginia around 1799.  

Larry Solum's Legal Theory Lexicon: Corpus Linguistics
Michael Ramsey

At Legal Theory Blog, Larry Solum has this entry in the "Legal Theory Lexicon": Corpus Linguistics. From the introduction:

... Legal disputes frequently turn on the meaning of a contract, will, rule, regulation, statute, or constitutional provision.  How do we determine the meaning of legal texts?  One possibility is that judges could consult their linguistic intuitions.  Another possibility is the use of dictionaries.  Recently, however, lawyers, judges, and legal scholars have discovered a data-driven approach to ascertaining the semantic meaning of disputed language.  This technique, called "corpus linguistics," has already been used by courts and plays an increasingly prominent role in legal scholarship.  This entry in the Legal Theory Lexicon provides a basic introduction to corpus linguistics.  As always, the Lexicon is aimed at law students with an interest in legal theory.

Situating Corpus Linguistics

Why has corpus linguistics become important in contemporary legal theory and practice?  The answer to that question is complicated.  One important impetus is rooted in the revival of formalism in general legal theory: that revival is reflecting in the developments in the law and theory of both statutory and constitutional interpretation.  Statutory interpretation in the 1960s and 1970s was dominated by approaches that emphasized legislative intent and statutory purpose, but in the last three decades, textualism (or "plain meaning textualism") has been on the ascendance.  Similarly, the living constitutionalism once held hegemonic sway over the realm of constitutional interpretation, but in recent years, originalism has become increasingly important in both the academy and the courts.

And from later on:

How Does Corpus Linguistics Work? 

 Corpus linguistics begins with data sets, singular "corpus" or plural "corpora."  These data can be very large--with millions or even billions of words.  For example, the Corpus of Contemporary American English (COCA) consists of approximately 520 million words.  News on the Web (NOW) consists of more than 5.21 billion words.

Corpus lexicography uses these datasets to investigate the meaning of words and phrases.  Whereas traditional dictionary lexicography relied on researchers compiling instances of usage by reading various sources, the corpus approach allows random sampling from large databases with blind coding by multiple coders.

A complete description of the methods of corpus lexicography is beyond the scope of this brief Lexicon entry, but there are two search techniques that can be described briefly.  The first of these is the Key-word-in-context (or KWIC) search.  This method is simple: a corpus is searched for the occurrence of a string (a word or phrase) and reports back the context in which the string occurs.  The individual instances can then be coded for meaning.  The result will be a set of meanings and data about the frequency of the meanings with the sample.  The second method involves a search for the collocates of a word or phrase: for example, the word "bank" might have collocates like "river," "shady," "deposit," and "ATM."  Collocates may help to disambiguate a word like "bank" that has multiple meanings.

11/23/2020

New Book: "The President Who Would Not Be King" by Michael McConnell
Michael Ramsey

Recently published, by Michael McConnell (Stanford): The President Who Would Not Be King: Executive Power under the Constitution (Princeton Univ. Press 2020).  Here is the book description from Amazon:

One of the most vexing questions for the framers of the Constitution was how to create a vigorous and independent executive without making him king. In today's divided public square, presidential power has never been more contested. The President Who Would Not Be King cuts through the partisan rancor to reveal what the Constitution really tells us about the powers of the president.

Michael McConnell provides a comprehensive account of the drafting of presidential powers. Because the framers met behind closed doors and left no records of their deliberations, close attention must be given to their successive drafts. McConnell shows how the framers worked from a mental list of the powers of the British monarch, and consciously decided which powers to strip from the presidency to avoid tyranny. He examines each of these powers in turn, explaining how they were understood at the time of the founding, and goes on to provide a framework for evaluating separation of powers claims, distinguishing between powers that are subject to congressional control and those in which the president has full discretion.

Based on the Tanner Lectures at Princeton University, The President Who Would Not Be King restores the original vision of the framers, showing how the Constitution restrains the excesses of an imperial presidency while empowering the executive to govern effectively.

11/22/2020

New Book: "The Second Founding" by Ilan Wurman
Michael Ramsey

Recently published, by Ilan Wurman (Arizona State): The Second Founding: An Introduction to the Fourteenth Amendment (Cambridge Univ. Press 2020).  Here is the book description from Amazon:

In The Second Founding: An Introduction to the Fourteenth Amendment, Ilan Wurman provides an illuminating introduction to the original meaning of the Fourteenth Amendment's famous provisions 'due process of law,' 'equal protection of the laws,' and the 'privileges' or 'immunities' of citizenship. He begins by exploring the antebellum legal meanings of these concepts, starting from Magna Carta, the Statutes of Edward III, and the Petition of Right to William Blackstone and antebellum state court cases. The book then traces how these concepts solved historical problems confronting framers of the Fourteenth Amendment, including the comity rights of free blacks, private violence and the denial of the protection of the laws, and the notorious abridgment of freedmen's rights in the Black Codes. Wurman makes a compelling case that, if the modern originalist Supreme Court interpreted the Amendment in 'the language of the law,' it would lead to surprising and desirable results today.

And here is a longer description Professor Wurman has posted on SSRN:

It has become conventional wisdom among originalist scholars that the privileges or immunities clause of the Fourteenth Amendment incorporates the bill of rights against the states, guarantees unenumerated fundamental rights, or both. The clause, however, likely does neither. In my new book, The Second Founding: An Introduction to the Fourteenth Amendment, I examine the three antebellum legal concepts at the heart of the Fourteenth Amendment’s first section; the historical and political problems confronting the framers of the Amendment; and how the framers deployed the antebellum legal concepts to solve these historical problems. This legal and political history strongly suggests that the privileges or immunities clause was intended to be an antidiscrimination provision with respect to civil rights under state law.

The book innovates in a few ways over prior scholarship. First, it relies on the “language of the law” and the general political history of the period, with minimal resort to the more unreliable legislative debates in the Thirty-Ninth Congress. The antebellum legal materials suggest that due process of law was indeed about process, not substance; that the protection of the laws was about government protection against private invasion of private rights; and that privileges and immunities provisions were overwhelmingly about nondiscrimination. Indeed, in light of the historical meanings of due process and protection of the laws, only an antidiscrimination reading of the privileges or immunities clause would succeed in constitutionalizing the Civil Rights Act of 1866, the central objective of the Fourteenth Amendment’s framers.

Second, the book shows how the antebellum political history, so often cited in support of incorporation or the fundamental rights reading of the privileges or immunities clause, actually supports the antidiscrimination reading. Third, it responds to other recent accounts of the privileges or immunities clause, propounded respectively by Phillip Hamburger, Kurt Lash, Akhil Amar and Michael Kent Curtis, and Randy Barnett and shows why each account is likely mistaken in light of the relevant antebellum legal and political history. Fourth, it suggests normative reasons to favor the antidiscrimination reading: it is the only reading that supports the outcome in Brown v. Board of Education, and possibly even in Obergefell v. Hodges; and it would allow the states to innovate away from controversial Supreme Court interpretations of modern rights in an era when many worry about the Court “weaponizing” such rights. Fifth, it shows that an originalist seeking to defend incorporation may still be able to do so; but she would have to rely on arguments from “liquidation,” the originalist version of historical gloss.

11/21/2020

Originalism and Birthright Citizenship (again)
Michael Ramsey

I have posted a revised version of Originalism and Birthright Citizenship (Georgetown L.J., forthcoming) on SSRN.  This should be close to the final version.  Thanks to readers of this blog and of Volokh Conspiracy for helpful comments.

I want to respond briefly to Andrew Hyman's post, in which he argues that the citizenship clause requires birth within a state to acquire constitutional citizenship.  He bases that view on the fact that the clause says all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States "and of the state wherein they reside."

I think this is mistaken for three reasons.  First, there's a plausible alternative reading: that national citizens are also citizens of the state, if any, in which they reside.  Residence outside a state doesn't defeat national citizenship; it only defeats state citizenship.  True, this implies the phrase "if any" into the text.  But I think that's a natural enough implication.  Suppose I tell my kids: if you eat your dinner, you can have a slice of pie and the candy in your pocket.  One kid does not have any candy in his pocket.  In my view (and, I'm sure, in his), he can still have pie.  I meant "...and the candy, if any, in your pocket."  Having candy in his pocket isn't a prerequisite for having pie; it's just a prerequisite for having candy.

Second, the clause's text doesn't actually say what Andrew reads it as saying.  The key word "reside" is in the present tense.  That indicates that the residence to which it refers is not at a time in the past (at birth) but rather in the present -- that is, wherever the person currently resides.   That's a sensible outcome; one would expect state citizenship to change when one changes one's state of residency.  But if that's right, state residency can't be a prerequisite for national citizenship.  It would make no sense for national citizenship to disappear if one moved outside of the states (say, from Virginia to Washington D.C.).

If the drafters wanted to require birth within a state for national citizenship, they would have written it differently: "... are citizens of the United States and of the state in which they were born."  Or alternatively they could have required birth "within a state of the United States."  Andrew suggests that perhaps "in the United States" itself meant "within a state of the United States."  I respond to this claim directly in the article (Part II.A.)  It's clear from the pre-drafting linguistic background and from drafting commentary that "in the United States" ordinarily included U.S. territories as well as U.S. states, and that the drafters understood it that way.

Third, it's extremely unlikely that the drafters would have wanted to exclude from constitutional citizenship people born in U.S. territories.  I can think of no reason for doing so.  Why would they want, for example, to exclude people born in Washington D.C. from constitutional citizenship?  Further, it's very likely that they would have affirmatively wanted to include people born in D.C. and the western territories.  One of the main reasons for the citizenship clause was to assure constitutional citizenship to freed slaves and other U.S.-born people of African descent (whose citizenship had been questioned in the Dred Scott case). Excluding the territories from the citizenship clause would leave persons of African descent in D.C. and the western territories unprotected.  Andrew says they could be made citizens by statute -- but the point of the citizenship clause was to guarantee a constitutional right of citizenship that didn't depend on (and so couldn't be taken away by) a statute.  Moreover, in light of Dred Scott, it wasn't entirely clear at the time that people of African descent could be made citizens by statute.  The citizenship clause was designed to fix that error; there's no reason the drafters would have fixed it for people of African descent born in states but not for those born in territories.

My touchstone is the original meaning, so if the original meaning is clear I think that's the end of the inquiry even if the results seem odd.  But here the text is anything but clearly in favor of Andrew's reading; at most it's ambiguous, although actually I think the text alone favors my reading.  When the history and purpose of the clause are considered as well, I think it's apparent that it includes people born in U.S. territories as well as those born in U.S. states.  The state residence language adds the right to be a citizen of the state of one's current residence (I agree with Andrew that this means one's primary residence), but it doesn't impose an additional requirement of state residence for national citizenship.

11/20/2020

John McGinnis on the First and Second Amendments
Michael Ramsey

At Law & Liberty, John McGinnis: Gun Rights Delayed Are Gun Rights Denied. From the introduction:

An analogy to the First Amendment demonstrates why the delays in gun access are unconstitutional. While the First Amendment permits states to require licenses for demonstrations (because of the need to prevent disruption to other activities), such licenses cannot be so unreasonably delayed as to effectively undermine the right of free speech. Moreover, the First Amendment suggests the need for licensing exceptions for demonstrations in response to breaking news. In any event, judges have permitted short delays of only a few days before licenses for demonstrations must be issued.

Similarly, licensing is permitted under the Second Amendment to make sure that guns do not get in the hands of felons and the mentally ill—categories of people the Supreme Court has stated do not have the right to guns. But delays in issuing gun licenses during unrest would render the Second Amendment right as ineffective as unnecessary delays in protest licensing would the First. Moreover, substantial delays are unneeded to determine whether someone is a felon or has been adjudicated as mentally ill, as the federal instant gun check program shows. These delays are also far more substantial than any “cooling off” period that would help prevent crimes of vengeance or passion, even assuming that such a reason for delay was compatible with the Second Amendment’s provision of a right to ready self-defense.

In a recent article, I offer new evidence about why the analogy between the First and Second Amendments is particularly appropriate. And surprisingly, that evidence, while never previously discussed in the context of the Second Amendment, also provides new support for the proposition that the Second Amendment articulates an individual right whose purpose was to protect personal safety, not just a collective right to be exercised through the militia. And it comes from none other than James Madison, father of the Constitution and drafter of the Bill of Rights. Talk about evidence hiding in plain sight!

11/19/2020

David Golove on the Supreme Court and the Original Understanding of the Alien Tort Statute
Michael Ramsey

At Just Security, David Golove: The Alien Tort Statute and the Law of Nations: New Historical Evidence of Founding-Era Understandings (part of an ongoing symposium on two consolidated cases currently pending at the Supreme Court, Nestle USA v. Doe and Cargill v. Doe).  From the introduction: 

The [Alien Tort Statute (ATS)] is now once again before the Court.  The most recent case, Doe v. Nestle, which focuses on allegations that the defendants’ facilitated child slave labor practices in the Ivory Coast, threatens to finish off whatever of Filartiga is still standing.  The critical difference between Doe, on the one hand, and Kiobel and Jesner, on the other, is that the corporate defendants are U.S., not foreign, corporations.  There are two principal issues, first, whether Kiobel’s presumption against extraterritoriality applies even when the defendants are U.S. nationals and, second, whether the Jesner Court’s rejection of corporate liability applies to U.S. as well as foreign corporations.  I address the first issue here.  It is the discovery of hitherto unknown and highly probative early historical precedents about the meaning and purposes of the ATS that prompts this essay.

Preliminarily, it is important to appreciate what is at stake in Doe.  The desirability of the U.S. courts’ being available as judicial forums for the enforcement of human rights standards globally is at least debatable.  For example, should ATS litigation be viewed as a laudable effort to improve human rights practices around the world, or is it another example of U.S. imperialism, in this instance being implemented through the judiciary?  Given the problematic nature of U.S. human rights practices, is it unduly hypocritical for the U.S. courts to assume the role of judging foreign governments and their officials for their human rights defaults?

Whatever answers one might give to these questions, the issue in Doe is importantly different.  The fundamental question before the Court is not whether U.S. courts will hold foreign human rights abusers accountable but whether they will hold U.S. human rights abusers accountable for what they do in other countries.  The answer the Court gives to that question will go far in defining how the nation conceives of its fundamental moral commitments as a member of the international community of nations.

And from the core of the argument (footnotes omitted):

The ATS was thus only one of a number of legal mechanisms and rules designed [during the founding era] to ensure that the U.S. government would not be held responsible for the violations of the law of nations committed by its citizens.  It is in light of this understanding of the purpose of the ATS that the presumption against extraterritoriality, recognized in Kiobel, should be interpreted and applied.  In Kiobel, the defendants were foreign corporations with limited contacts in the United States – they had “mere corporate presence” in the United States – and the actions for which they were sued had little or no connection to this nation.  There was thus no ground on which the United States could be charged with responsibility for the violations of the law of nations the defendants had allegedly committed.  For this reason, the Court’s ruling that the presumption precluded jurisdiction under the ATS was consistent with the core purpose of the ATS as the Court had interpreted it.

The Doe case is strikingly different, because the corporate defendants are U.S. entities.  In contrast to Kiobel, therefore, the tortious breaches of the law of nations alleged in the plaintiffs’ complaint, unless properly disavowed, could be attributed to the United States and cause the nation diplomatic embarrassment or worse.  The case therefore fits squarely within the core of the ATS, which was to ensure that the United States would not be charged with complicity in violations committed by its nationals.

In a case of this kind, the presumption against extraterritoriality is properly “displaced,” and nothing in Kiobel suggests the contrary. Indeed, in applying the presumption, the Court was keen both to review the context in which the statute was adopted, and the early understandings as to its scope, to ensure that application of the presumption was consonant with the Act’s purposes.  “[T]he historical background against which the ATS was enacted,” the Court reasoned, was plainly relevant in determining whether the presumption was applicable, and, as the Court in Morrison had observed, “‘[a]ssuredly context can be consulted’ in determining whether a cause of action applies abroad.”  The Kiobel Court then devoted the bulk of its opinion to considering the relevant early history.

Nothing in the Act’s language, nor its purpose, suggests that, when the tortfeasor was a U.S. national for whose actions the United States might be charged with responsibility, Congress was concerned about where the actions took place.  It was irrelevant whether the wrongful act was committed in U.S. territory, on the high seas, or in the territory of a foreign nation.  For example, circa 1789, whether a U.S. citizen committed an offense against the law of nations in the United States, or only after crossing the border into East Florida, then Spanish territory, would have made no difference.  If the United States failed to disavow the conduct by prosecuting the wrongdoer or providing a judicial forum in which civil liability could be imposed, it would have generated the same potential for diplomatic controversy.

Agreed.  I see no reason to think federal jurisdiction under the ATS should be limited to claims arising in U.S. territory.  The ATS's text grants jurisdiction in general terms.  No one thinks the federal diversity jurisdiction statute, which similarly grants federal jurisdiction in general terms, is limited to claims arising in U.S. territory. And as Professor Golove says, there's no reason to think the enacting Congress distinguished between claims arising in the U.S. and claims arising abroad.

But the plaintiffs (and I think Professor Golove) want a lot more than that.  They want U.S. courts to find an implied federal cause of action under the ATS to apply U.S. law to claims arising abroad.  That's much more problematic.  I hope to have more to say on this shortly.

11/18/2020

Kevin P. Tobia & John Mikhail: Two Types of Empirical Textualism
Michael Ramsey

Kevin P. Tobia (Georgetown University Law Center) and John Mikhail (Georgetown University Law Center) have posted Two Types of Empirical Textualism (Brooklyn Law Review, forthcoming) (22 pages) on SSRN.  Here is the abstract:

Modern textualist and originalist theories increasingly center interpretation around the “ordinary” or “public” meaning of legal texts. This approach is premised on the promotion of values like publicity, fair notice, and democratic legitimacy. As such, ordinary meaning is typically understood as a question about how members of the general public understand the text—an empirical question with an “objective” answer. This Essay explores the role of empirical methods, particularly experimental survey methods, in these ordinary meaning inquiries. The Essay expresses cautious optimism about new insight that empirical methods can bring, but it also warns against assuming that these methods will deliver uncontroversial, objective solutions in legal interpretation.

As a concrete illustration, the Essay analyzes the main statutory question presented in Bostock v. Clayton County (2020). Both Justice Gorsuch’s majority opinion and the dissents by Justices Alito and Kavanaugh offer avowedly textualist analyses of Title VII’s “ordinary meaning,” yet their reasoning and conclusions diverge. To help explain these differences, the Essay proposes a distinction between two types of empirical textualism, which we call the “ordinary criteria” and “legal criteria” versions. The former conceptualizes ordinary meaning as closely connected to empirical facts about how ordinary people understand statutory language; in effect, it equates ordinary meaning with ordinary understanding. The latter conceptualizes ordinary meaning differently, combining the common understanding of statutory terms with both their previously-established legal meanings and their legal entailments. Bostock exemplifies the difference between these approaches, with Justices Alito and Kavanaugh relying on the former and Justice Gorsuch on the latter. The Essay also presents a new experimental study of the key linguistic dispute in Bostock—public judgments about discrimination “because of” sex—that illustrates differences between these two approaches to empirical textualism.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!"