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31 posts from November 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!"


Federalist Society National Lawyers Convention Now on Video
Michael Ramsey

The 2020 Federalist Society National Lawyers Convention is now available on video via this link.  Some highlights include:

Address by Justice Samuel Alito

Address by Judge Janice Rogers Brown

Address by Eugene Scalia

Panel: Religious Liberty and the New Court (Religious Liberties Practice Group) (with Stephanie Barclay, Gerard Bradley, Eugene Volokh, Lori Windham, and Judge Neomi Rao as moderator)

Panel: The Law, China, and the Possible New Cold War (International Law and National Security Law Practice Group) (with Ambassador Richard Haass, Julian Ku, Mike Rogers and Judge Elizabeth Branch as moderator)

Panel: The Presidency and the Rule of Law (with Neil Eggleston, Jack Goldsmith, Boyden Gray, Theodore Olson and Chief Judge Edith Jones as moderator)

Panel: Emergency Powers and the Rule of Law (Federalism and Separation of Powers Practice Group) (with John Eastman, Ilya Shapiro, Elizabeth Wydra, John Yoo and James Ho as moderator)


Farah Peterson: Expounding the Constitution
Michael Ramsey

Farah Peterson (University of Chicago Law School) has posted Expounding the Constitution (Yale Law Journal, Vol. 130, No. 1, 2020) (83 pages) on SSRN.  Here is the abstract:

Judges and statesmen of the early Republic had heated exchanges over the importance of hewing to the text in constitutional interpretation, and they advanced dueling interpretive prescriptions. That is why contemporary theorists of all persuasions can find support for their positions in the Founding era. But no side of the Founders’ debate over constitutional interpretation maps perfectly onto a modern school of thought. Modern scholarship has misunderstood the terms of the Founders’ debate because it sits on an unfamiliar axis. Instead of arguing over whether the Constitution was, for instance, living or static, this Article demonstrates that early American lawyers debated whether the Constitution should be interpreted according to the methodologies applicable to public or private legislation.

This distinction among different types of legislation has faded from view because modern legislatures almost never pass private laws—statutes that apply only to one person, group, or corporation. But in early America, private legislation was the majority of legislatures’ business. Generally applicable laws, like those Congress busies itself with today, were the minority. What’s more, American courts had fixed, predictable, and familiar rules of interpretation for each type of law. Private acts received stricter, more text-orientated interpretations while public acts were interpreted broadly and pragmatically to effectuate their purposes, taking into account new circumstances that the drafters may not have foreseen.

After ratification, critical policy differences emerged among American statesmen in the first Congress. Hamilton and Madison, once united as authors of the Federalist Papers, found themselves on different sides. Both insisted that the Constitution must be interpreted to vindicate their views, and in the process, they opened a debate about interpretation that would characterize the nation’s constitutional jurisprudence until the 1820s. The Federal Constitution was a novelty. But lawyers don’t tend to make new rules to suit new situations; we prefer to rely on precedent. And that is what these lawyers did, using legal tools devised for interpreting legislation—a form of written law with consistent interpretive rules that were part of the bread-and-butter practice of every American lawyer.

We cannot understand the major cases of the Marshall Court, including Marbury, Martin, and McCulloch without this context. In these cases, litigants argued over, and the Court wrestled with, whether public or private legislation provided the best analogy for the Federal Constitution. The answer dictated whether restrictive or pragmatic rules would govern its interpretation. The terms of these arguments would have been obvious to the legal thinkers of that generation. Yet, in spite of all the attention we have lavished on Hamilton, Jefferson, Madison, Marshall, Story, and their world, this central dynamic of their legal culture has remained unexplored.

This Article argues that, during framing and ratification, many of the Founders thought the Constitution would be interpreted according to the rules applicable to public legislation, although statesmen like Jefferson and Madison later took a different view. Chief Justice Marshall’s enduring commitment to the public-act analogy explains his embrace of “implied powers” in McCulloch and underpins the broad, nationalist vision in his other major decisions. These insights are not only critical to understanding those decisions on their own terms, they are also highly relevant to modern constitutional theorists who rely on early American precedent. If the Founders intended that the Constitution would be interpreted according to the rules of public legislation, then the “original” Constitution is a flexible and pragmatic charter, not a fixed and immutable artifact.

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


James Macleod: Finding Original Public Meanings (Updated)
Michael Ramsey

James Macleod (Brooklyn Law School) has posted Finding Original Public Meanings (51 pages) on SSRN. Here is the abstract: 

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissent disagreed vehemently over the statute’s bar on discrimination “because of sex” — each side claiming that OPM clearly supported its interpretation. How can textualists’ OPM inquiry yield such divergent conclusions?

This Article introduces a new “applied-meaning-experiment” method to answer that question and develop the theory of textualism. The method asks ordinary readers to apply the relevant statutory language in context, under experimental conditions that minimize the effect of potential biases or differences between enactment-era and present-day usage. For Bostock, the applied-meaning-experiment method reveals that the majority was right: an “ordinary reader” at the time of Title VII’s enactment would have understood that it barred LGBT discrimination.

The insights from the applied-meaning-experiment method, however, extend far beyond the controversy in Bostock. In other contexts where textualists disagree over OPM, the method sheds light on how ordinary readers would have understood statutory terms at the time they were enacted. More importantly, the method helps diagnose why textualists might disagree about OPM in a given case. Textualists might lack probative evidence of OPM; but they might also implicitly disagree about what they’re looking for. Specifically, inquiry into actual reader understanding highlights two choices textualists inevitably make when determining a given term or phrase’s OPM: (1) the type of question whose answer would reveal the reader’s relevant “understanding,” and (2) the types of extratextual information that the reader would treat as relevant to answering it. To the extent that textualists have considered either question, they have done so inconsistently, without realizing what they are doing. By confronting each question directly, the applied-meaning-experiment method helps build out the theory of textualism in a way that’s needed in order for textualism to be a coherent and normatively attractive theory of interpretation.

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


Leonid Sirota on Canadian Originalism
Michael Ramsey

Yesterday I mentioned the interesting Canadian law blog Double Aspect, which has an originalist orientation.  Here is a recent post from its founder Leonid Sirota:  Still Keeping It Complicated--The Supreme Court tries to bring more rigour to constitutional interpretation and takes a step towards textualism, but won’t admit it.  From the introduction: 

In my last post, I summarized the opinions delivered in Quebec (Attorney General) v 9147-0732 Québec inc, 2020 SCC 32. While the Supreme Court unanimously holds that corporations are not protected from cruel and unusual punishment by section 12 of the Canadian Charter of Rights and Freedoms, the majority (Justices Brown and Rowe, with the agreement of the Chief Justice and Justices Moldaver and Côté) and the principal concurrence (Justice Abella, with Justices Karakatsanis and Martin) strongly disagree about the proper approach to constitutional interpretation and to the role in this process of international and foreign legal materials.

As promised, in this post I present my thoughts on these opinions, primarily on their general approach to interpretation, though I’ll say something on the role of international and foreign materials too. I will, once again, begin with Justice Abella’s opinion, which in my view is representative of what I have described as “constitutionalism from Plato’s cave” ― the judicial creation of constitutional law out of abstract ideals favoured by the judges themselves rather than genuine interpretation of a constitutional text. I will then turn to the majority opinion, which repudiates constitutionalism from the cave, but also seemingly rejects what I regard as the best interpretive method, public meaning originalism. I will argue that there is less to this rejection than meets the eye.

One question on which I will say nothing, although the majority and the principal concurrence trade sharp accusations on it, is which of these opinions is more consistent with precedent. As Benjamin Oliphant and I have pointed out in our article on “Originalist Reasoning in Canadian Constitutional Jurisprudence”, the Supreme Court has never been consistent in how it interpreted the constitution, mixing and matching originalist and living constitutionalist approaches in any number of unpredictable ways. (Mr. Oliphant has developed this theme elsewhere too.) Justices Brown and Rowe are right to call for more rigour and consistency on this front; but they are wrong, as is Justice Abella, to suggest that has been any rigour and consistency in the past. Whatever their flaws, neither the majority nor the concurring opinion break with established law, because there is no real law to break with.


Guy-Uriel Charles & Luis Fuentes-Rohwer on the Chiafalo Decision
Michael Ramsey

Guy-Uriel E. Charles (Duke University School of Law) and Luis E. Fuentes-Rohwer (Indiana University Maurer School of Law) have posted Chiafalo: Constitutionalizing Historical Gloss in Law & Democratic Politics (31 pages) on SSRN.  Here is the abstract:

This Essay examines Justice Kagan’s electoral college decision in Chiafalo v. Washington, which uses historical gloss—post Founding historical practices—to give meaning to the Constitution and to do so in a manner that is arguably inconsistent with the text and structure of the Constitution. We argue that Justice Kagan, the democracy Justice, uses historical gloss instrumentally to constitutionalize a particular and modern view of political participation—which is best reflected by American political practices—and to reject an alternative and anachronistic view—which is best reflected by the text and structure of the Constitution. Chiafalo is an attempt to update and modernize our understanding of representation and political participation. We explore some issues that are raised for the historical gloss literature and for the practice of law and democracy when gloss is used in this way to interpret the Constitution.

For some previous Originalism Blog commentary on Chiafalo:

Mike Rappaport, The Originalist Disaster in Chiafalo

David Weisberg, A Second Opinion re: Chiafalo v. Washington

Michael Ramsey: The Faithless Electors Case: Not as Bad as it Might Have Been 

RELATED:  As a counterpoint, I recently came across this July 2020 post on Chiafalo from an interesting Canadian law blog called Double Aspect --

Leonid Sirota: Keeping Faith: A master class in public meaning originalism, delivered by the US Supreme Court’s Justice Elena Kagan.  From the introduction:

Earlier this week, the Supreme Court of the United States delivered its decision in Chiafalo v Washington, upholding the constitutionality of a state statute imposing fines on “faithless” presidential electors ― those who do not vote for the candidate who won their state’s popular vote. The majority judgment, given by Justice Kagan for a seven-judge majority (and indeed unanimous on some key points), should be of some interest to Canadian readers for what it says about constitutional interpretation and, in particular, about the role of conventions and practice. As others, notably Josh Blackman over at the Volokh Conspiracy, have noted, Justice Kagan’s opinion is a thoroughly, and intelligently, originalist ― which should remind skeptics of originalism inclined to dismiss it as a partisan affectation that it is not. 


Justice Samuel Miller’s “Comical” Interpretation of the Citizenship Clause
Andrew Hyman

When a law says “X is Y and also Z,” it is ordinarily appropriate to conclude that X is Z, and to do so using an ellipsis: “X is… Z.”  If we apply this logic to the Citizenship Clause of the Fourteenth Amendment, we find that, “all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens… of the state wherein they reside.“ Thus, a person whose residence is outside the states is not both (1) born or naturalized in the U.S. and (2) subject to the jurisdiction of the U.S.  This is very straightforward logic.

The Citizenship Clause does not explicitly say why it adopted this rule, but there are several possibilities. First, it may be that a person was not always considered to have been legally born where he was geographically born, and such legal fictions were well known in the 1860s. Second, the name “United States” may be used in the Citizenship Clause in its plural sense, as in Article 2, Section 1 of the Constitution (“the United States, or any of them”). Third, it may be that a person was not to be considered fully subject to the jurisdiction of the United States if his domicile was located in another country, or if he was not in amity with the United States. But the bottom line is that it does not matter which of these three explanations (or others) apply. The fact remains that the Citizenship Clause plainly says that all persons born or naturalized in the U.S. and subject to U.S. jurisdiction have their residence in one of the states; and, as I recently discussed, residence in this context means domicile.

This meaning of the Citizenship Clause is fully consistent with the outcome in the famous case of Wong Kim Ark, which involved a person born in the state of California in 1873 after it had become a state in 1850, while his parents had a permanent domicile there.  To those who may regard this understanding of the Citizenship Clause as stingy, it is vital to remember that its authors were trying to establish an unobjectionable core citizenship principle that would leave Congress free to expand upon that core principle by statute under other constitutional authority, such as the Naturalization Clause.

The interpretation that I've just described is different from the one that the U.S. Supreme Court gave in the Slaughter-House Cases in 1873:

Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.

I agree with Professor Bryan Wildenthal that this statement by Justice Samuel Miller is “comical.”  Miller went a bit overboard in trying to sharpen the distinction between state and national citizenship, and he basically rewrote the language of the Citizenship Clause which actually makes quite clear that “all” people born or naturalized in the United States, and subject to the jurisdiction thereof, have their residence in one of the states, and that obviously includes "all" people who qualify as U.S. citizens under the Citizenship Clause.

Justice Miller further wrote that, “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.”  Miller had to base this assertion on the word “jurisdiction” alone, since he chose to mangle the actual language and structure of the rest of the Citizenship Clause, and of course the Court in Wong Kim Ark flushed Miller’s interpretation of the word “jurisdiction” down the drain: “This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to authorities; and that it was not formulated with the same care and exactness, as if the case before the court had called for an exact definition of the phrase, is apparent from its classing foreign ministers and consuls together….”  The same lack of care and exactness by Miller undermines his view that residence within a state is not pertinent to the Citizenship Clause’s grant of national citizenship, but the constitutional text certainly says it is pertinent.

In conclusion, I would like to state very directly whether I think the authors of the Fourteenth Amendment meant to require that people be domiciled in a state at the time of birth, in order to get citizenship.  The answer is generally yes as to constitutional citizenship, but no as to statutory citizenship, and for them statutory citizenship was no less valuable to a person than constitutional citizenship.  Not only did the Citizenship Clause allow states to confer state citizenship upon almost anyone at all, but it also left Congress free to confer U.S. citizenship upon almost anyone at all.  And Congress has done so numerous times, both before and after adoption of the Fourteenth Amendment.  I am not addressing here whether Congress has any power to revoke citizenship once granted, though I doubt it.

Another View on Court-Packing
David Weisberg

The question—Is court-packing constitutional?—has, I think, both enormous consequences and a very clear answer.  Article III is completely silent as to how many “Judges” shall sit on the “supreme Court.”  Therefore, the members of Congress may increase or decrease that number as they choose.  Moreover, the size of the Court changed 7 times in its first 80 years.  I’d think originalists would take that as strong evidence that changing that size is entirely consistent with the original meaning of the Constitution.

Prof. Rappaport suggests that it might be important to consider whether the motive behind a push to expand the Court is consistent with the “spirit” of the Constitution, even if nothing in the “letter” of that document prohibits expansion.  It is suggested, further, that the “necessary and proper” clause of Article I, Section 8, bars laws that are inconsistent with the “spirit” of the Constitution, citing McCulloch vMaryland.  Prof. Rappaport is not sure whether such an approach is right or wrong.  I think it is clearly wrong.

First, a very general point.  I’m not an originalist but, as I’ve explained elsewhere, I fully agree with the late Justice Scalia’s view that many of the Court’s most noted decisions, beginning in the Warren era and continuing thereafter, displayed disdain for democratic decision-making and an exaggerated notion of judicial competence and authority.  Justice Scalia championed his original-public-meaning originalism as a means to an end, namely, curtailing judicial overreaching.  The idea that laws that are consistent with the “letter” of the Constitution nevertheless may be struck down as inconsistent with the Constitution’s “spirit” is a gold-plated invitation to the judicial overreach Scalia abhorred.

It is suggested that expanding the Court might be inconsistent with the “spirit” of the Constitution because the Court is intended to be an independent branch of government.  The Court certainly is intended to be independent, but its independence is guaranteed (to the extent it can be) by life tenure, non-diminishing compensation, and the judicial oath.  Those who would expand the Court and then confirm new Justices can’t be sure of the result.  Pres. Eisenhower famously said that his two biggest mistakes were sitting on the Court.      

More fundamentally, the idea that the Court may be expanded for a good reason (one consistent with the Constitution’s “spirit”) but not for a bad reason (one that is inconsistent with that “spirit”) leads to incoherence.  The quintessential bad reason, we’re told, is that congressional majorities and the president want to ensure how future cases are decided—to pick an example at random, to ensure that the essential holding of Roe vWade will always be affirmed.  But if congressional majorities and the president sincerely believe the Constitution requires that affirmance, how does it violate the “spirit” of the Constitution to try to ensure that result?

Moreover, if one accepts that, depending on the motives of Congress, court-packing might or might not be constitutional, the question arises: How would the courts decide the question of constitutionality?  Some members of Congress would say they voted for expansion because the Court does not fairly reflect the diversity of the American people; others would say they voted to ensure the survival of Roe; others would say nothing.  How will the motivation for expansion be determined?      

Finally, consider the bleak drama that will unfold when the case reaches the Supreme Court.  The then-sitting Justices will have to decide whether the significance of their votes on the nine-member Court will be diluted by the addition of X number of new Justices.  Should they all recuse themselves because they have a direct interest in the outcome?  In contrast, if the Court recognizes that court-packing presents no constitutional issue (because the Constitution is completely silent regarding the size of the Court), the current Justices would avoid potentially embarrassing questions of conflict of interest by simply refusing to entertain a facially meritless question.

I personally believe court-packing would be a huge mistake, although it’s not unconstitutional.  Over time, beginning probably with the ‘borking’ of Judge Robert Bork, elected politicians have in effect been teaching Americans that the Court is just a third political body that should reflect partisan interests.  We have seen confirmation hearings where Senators seem to focus on everything but a nominee’s qualifications as a judge.  In 2016 we witnessed the non-confirmation non-proceedings for Judge Merrick Garland, which in my opinion violated the Senate’s implicit constitutional duty to consider and vote on nominations if there is reasonable time to do so.  When Donald Trump ran for president in 2016, he said that he would be “putting pro-life justices on the Court.”  And when he was running for president in 2020, Joe Biden confirmed that support for Roe would be a “litmus test” for his Supreme Court nominees.

Expanding the Court would be seen by Americans as additional proof that the Court is being, or has already been, transformed into a political institution; roughly half of them would think that’s a good thing, and the other half would think it’s bad.  It is dreadfully easy to imagine that, if Democrats expand the Court in 2021, then, when Republicans regain power, the Court will be expanded yet again.  Court-packing is a step neither party should take, but the Constitution is not a bar.  Let’s remember Justice Scalia’s favorite rubber-stamp: “Stupid, But Constitutional.”


Lee Strang on Saikrishna Prakash's "The Living Presidency"
Michael Ramsey

In the Federalist Society Review, Lee Strang: Can Originalism Constrain the Imperial Presidency? From the introduction (footnotes omitted):

The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, by Professor Saikrishna Bangalore Prakash [available on Amazon here], is a readable, systematic, and well-reasoned description of today’s living presidency, as well as a roadmap showing the way back to the constitutionally-authorized office. The Living Presidency’s thesis is that today’s presidents routinely “alter the Constitution and laws” such that the office has “become the amending executive.” But, in the beginning, “the original presidency was not meant to be all-powerful [and] lacked the unilateral authority to amend the Constitution or to make, amend, or unmake statutory law.” Professor Prakash describes the causes of today’s out-sized presidency, details support for his claims that the living presidency departs from the Constitution’s original meaning, and then suggests means to tame the living presidency.

The Living Presidency is readable and accessible to lawyers and educated laymen. At one point, Professor Prakash refers to the “generations of schoolchildren who grew up watching Schoolhouse Rock’s catchy song and video ‘I’m Just a Bill.’” He also colorfully describes Justice Hugo Black’s statement that the president merely executes the law, calling it “as antiquated as a rotary dial telephone, at least if we use modern practice as the benchmark.” The Living Presidency is peppered with concrete examples supporting Professor Prakash’s points. For example, while detailing the presidents’ push to acquire the power to substantively amend federal statutes, he uses the example of President Barack Obama delaying implementation of the Affordable Care Act’s employer mandate via “transition relief,” which he justified by pointing to past presidents’ delayed implementation of tax legislation.  One of Professor Prakash’s most effective techniques is to propose thought experiments about alternative choices that could have been made by the Framers and Ratifiers. “[I]magine what Article II would look like,” he asks, “if it had been written in a radically different era.” Would Americans in 1975 have created such a powerful executive?

Part of The Living Presidency’s accessibility also stems from its clear organization. In Chapter 2, Professor Prakash methodically explains why presidents have accumulated the power to make and amend laws. He identifies and discusses multiple motivations that have caused presidents to push the boundaries of their authority, including the love of power, a hunger for fame, and a desire to keep their promises to voters. The Living Presidency overall likewise has a clear, interlocking structure that introduces Professor Prakash’s idea of the living presidency, then examines the causes of the living presidency in general, and then drills down into three of the most important ways the living presidency has grown.

And from later on:

Is Originalism the Best Way to Contain the Living Presidency? 

In the debates between originalists and nonoriginalists, a standard nonoriginalist move, as Professor Prakash notes, is to point out how the living Constitution is more normatively attractive than the original one—that it gets better results even if it fudges on procedure. The Living Presidency challenges that claim in two important ways. First and directly, Professor Prakash details how the bloated powers of the living presidency exceed what most Americans, regardless of their jurisprudential views, believe is healthy. Most Americans, for instance, do not want the President to be able to unilaterally enter into a land war overseas. By any objective measure, the living presidency is too powerful.

Second, the living presidency’s key mechanism of growth is past presidential practice, which is easy to manipulate to achieve immediate partisan goals. The partisans of the current occupant of the White House will marshal past presidential acts to support their president, while critics will marshal their own examples and distinguish the president’s support. For instance, both Democrats and Republicans have switched between supporting and opposing congressional regulation of the armed forces based on the Commander in Chief Clause, depending on whether Clinton, Bush, or Obama was president. This dynamic leads Professor Prakash to conclude that “muddled partisan disputes are about all we can expect under the living presidency approach.”

Originalism, by contrast and in principle, excludes resort to “modern politics or ethical considerations” in the dynamic of expanding presidential power, and therefore its “answers are clear.” Most of us will like some aspects of the original presidency and dislike other aspects. But most of us also wish to abandon the status quo: fights over indeterminate presidential practice aiming solely at current partisan advantage. The letter of party affiliation after a president’s name ought not be relevant to whether he has the power to employ “enhanced interrogation techniques,” or to “commit” but not “engage in” hostilities in Libya. Originalism holds out the promise of reducing both the growth of the living presidency and the partisan acrimony that erupts over how to interpret past presidential practices. ...


Apportionment, Allegiance, and Birthright Citizenship
John Vlahoplus

Arguments of the President and his amici (the “Appellant Group”) in Trump v. New York (Supreme Court oral argument scheduled for 11/30) go beyond statutory grounds to assert that the Constitution supports or even compels the exclusion of unlawfully resident aliens from the count that apportions seats in the House of Representatives.  These arguments ignore early federal, state, and colonial immigration and naturalization laws.  They are inconsistent with fundamental constitutional principles, and they threaten longstanding precedents governing birthright citizenship and liability for treason.  Some even rely on discredited theories that would restrict or deny birthright citizenship for U.S.-born children of aliens.  The Supreme Court should reject these arguments and decide the case on statutory grounds, even if it analyzes the constitutional arguments using only materials and events through the ratification of the Fourteenth Amendment.

The Appellant Group argues that apportionment historically included aliens only because they were on a path to citizenship.  But early federal naturalization acts applied only to white immigrants.  The group provides no evidence that apportionment historically excluded others.  The group also argues that no federal law restricted immigration before 1875.  But a federal statute forbade entry to Black indentured servants beginning in 1808.  Treasury Secretary Cobb later explained that the statute’s language “leaves no doubt” that Congress “intended to provide in the most unequivocal manner against the increase of that class of population by immigration from Africa.”  Congress also federalized state laws forbidding entry to free foreign Blacks generally in 1803.  As a result of these laws and the prohibition of the slave trade, Secretary Cobb advised in 1858 against granting a vessel permission to depart a U.S. port for Africa for the purpose of boarding Blacks there and bringing them here.  Many other state and colonial laws also forbade immigration.  In 1786 a Virginia group complained that people had been living there for more than a year in violation of one such statute and that “their residence here is illegal.”  Americans were well aware of illegal immigration before the ratification of the Constitution and the Fourteenth Amendment.

The Appellant Group also argues that the Constitution only permits counting “inhabitants,” which they define thickly to exclude unlawfully resident aliens on the ground that they do not reside here permanently with significant ties to the country such as allegiance.  But unlawfully resident aliens owe allegiance to the United States.  Under the common law, alien friends and non-hostile alien enemies residing here are under our general protection, so they owe allegiance and can be held liable for treason.  This is also true for non-hostile alien enemies who arrive after hostilities begin, including those who come for economic reasons.  It is even true for prisoners of war captured here although they enter hostilely and without permission.  In addition, many immigrants who came before the ratification of the Fourteenth Amendment intended to return home, and many did—including forty to sixty four percent of Germans, southern Italians, and Hungarians who arrived in the great wave that began in 1830–50.  The Appellant Group provides no evidence that apportionment historically excluded aliens who intended to eventually return home.

The Appellant Group argues further that aliens in general, and unlawfully resident aliens in particular, must not be allowed “to redistribute ‘political power’ within” the United States through apportionment because that would be “fundamentally antithetical” to principles governing “the sovereign’s rights to define the polity (‘the people’).”  This just recycles an old policy argument asserted as early as 1867.  On the contrary, the Federalist 54 explains the principle justifying counting enslaved persons at all for apportionment, which also applies to unlawfully resident aliens:

In being protected . . . in his life and in his limbs, against the violence of all others, even the master of his labor and his liberty; and in being punishable himself for all violence committed against others, the slave is no less evidently regarded by the law as a member of the society . . . .

The arguments from allegiance and polity track the discredited consent theories of those who would restrict or deny birthright citizenship for U.S.-born children of aliens generally.  In attacking Justice Gray’s opinion in Wong Kim Ark, for example, John C. Eastman claims that Gray was “astoundingly incorrect” in asserting that an alien present in the realm owes obedience “and may be punished for treason.”  But Gray was correct, and Eastman is wrong—as he is about birthright citizenship generally.  The Court should reject the Appellant Group’s constitutional arguments and not allow Trump v. New York to surreptitiously alter longstanding principles governing apportionment, treason, and birthright citizenship.

This post is a shorter version of a paper (with citations) forthcoming in the British Journal of American Legal Studies and available on SSRN here.