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31 posts from December 2020


Matthew Franck on "McCulloch v. Maryland at 200"
Michael Ramsey

At Law & Liberty, Matthew Franck: Why McCulloch Is Blamed or Praised But Rarely Understood (reviewing McCulloch v. Maryland at 200: Debating John Marshall’s Jurisprudence (Gary Schmitt & Rebecca Burgess, eds., AEI Press, 2020)).  From the introduction: 

In any compilation of the greatest judicial opinions by the Great Chief Justice, John Marshall, McCulloch v. Maryland (1819) is bound to be mentioned, however short the list. Some scholars regard it as even more significant than Marbury v. Madison (1803), in which Marshall expounded on the power we now call judicial review. One thing the opinions have in common, unfortunately, is that both are widely misunderstood today. Marbury is commonly taught as though it stood for the puffed-up pretensions of judicial supremacy that attained the status of gospel truth among judges, lawyers, and law professors in the last century. And McCulloch is blamed or praised, depending on the political preferences of commentators, for allegedly writing a permission slip for Congress to do nearly anything it pleases under the rubric of “implied powers” authorized by the “necessary and proper” clause. But was that either the purpose or the effect of the Marshall Court’s decision in the case?


For two centuries, then, McCulloch has been a lightning rod of controversy. It was fitting therefore that the American Enterprise Institute should sponsor a conference on the bicentennial of the case, resulting in the present volume edited by Gary J. Schmitt and Rebecca Burgess.

And in conclusion:

As I have indicated above, the contributions of Christopher Wolfe and Adam White are the high points of this collection. Wolfe, long one of our best Marshall scholars, has the rare capacity to see Marshall’s jurisprudence as the chief justice himself saw it—as animated by a devotion to principle and an aversion to judicial aggrandizement. White’s contribution is a thoughtful consideration of what Marshall can teach us about the meaning of “judicial statesmanship.” Since in part he takes issue with an article of mine from three decades ago, I will take this opportunity to say that he seems quite ready to condemn judicial statesmanship as I described it, and I am quite ready to embrace judicial statesmanship as he describes it. And as he describes McCulloch—as a case in which a statesmanlike Marshall exercised restraint, declining to endorse a broad agenda of nationalism in American politics—I am quite happy to say amen. Twentieth-century “big government” will have to look elsewhere than Marshall’s great decision to find its constitutional justification.

Here is a list of contributors and their chapters:

Nelson Lund, The Destructive Legacy of McCulloch v. Maryland

Michael Zuckert, The Sound of the Third Hand Clapping: James Madison's Reading of the Necessary and Proper Clause

Christopher Wolfe: McCulloch v. Maryland and John Marhsall's Constitutional Interpretation

Robert Webking: "A Friend of the Constitution": John Marshall's Defense of McCulloch v. Maryland

Abram Shulsky, How an Economist Might View McCulloch v. Maryland

Adam White, McCulloch v. Maryland and John Marshall's Judicial Statesmanship


A Response to David Weisberg on Corpus Linguistics
James Cleith Phillips

[Ed.: We're pleased to have this guest response from James Cleith Phillips, Assistant Professor of Law at Chapman University Dale E. Fowler School of Law and one of the nation's leading experts on corpus linguistics in legal interpretation.]

David Weisberg has commented on a recent article I posted to SSRN wherein my co-author and I applied a corpus linguistic methodology to determine the ordinary meaning of key terms of the Antiquities Act of 1906. Our paper looked at the usage of the following phrases or words as they were used in the time leading up to and including the first decade of the 20th century:

  • situated upon (the) land(s) (searching for various forms of the verb situate)
  • upon the lands
  • lands
  • on land
  • land
  • parcel(s) of land

We searched for these phrases and words in the Corpus of Historical American English. And after reading hundreds of results, we could find no clear evidence that Americans from 1810-1909 commonly (if at all) used these phrases or words to refer to the bottom of the ocean. We concluded that the ordinary meaning of these terms would not include so-called “land” underneath the sea.

Mr. Weisberg criticizes not so much our research but the enterprise of using a corpus linguistic methodology itself for questions of ordinary meaning (his title supports this broader criticism). He finds it “false” that the dominant sense of a word or phrase in a context relevant to a statute is the ordinary meaning. In his view, “[f]requency does not determine or even alter meaning.”

As we noted in our paper, how exactly one should operationalize ordinary meaning is a theoretical question scholars and jurists have yet to definitely answer. If ordinary meaning is the meaning a word or phrase would have had to ordinary folks in a particular context, then understanding how people use language is an important insight into how they understand language. After all, just because a word or phrase can take on a particular meaning doesn’t mean it is usually understood to have that meaning in that context. Otherwise, language would constantly be ambiguous.

Mr. Weisberg rejects this and puts forth his own methodology using an example of the term misdemeanors from the Constitution’s text. He contends that while a search of the term in U.S. materials would reveal that in the context of “high crimes and misdemeanors” it would mean “serious, substantial wrongdoing,” it also had the common usage of “a relatively minor, insubstantial infraction.” Thus, in his view, the “frequency of one usage would not have obliterated or changed the meaning of the less-frequent usage.” So, the President could be impeached for “crossing against [a traffic] light.” (How could he know how common the criminal law usage was without resorting to a corpus? And when he refers to frequency, is he referring to overall or in a particular context?)

This example demonstrates at least three errors, which, unfortunately, are all too common. First, it ignores the linguistic principle of “non-compositionality.” Sometimes “the combination of words has a meaning of its own that is not a reliable amalgamation of the components at all,” such as for good or at all. Idioms are a specific type of this, as are cliches and frozen metaphors. (This is why the Supreme Court adopted the Anti-Dissection Rule in analyzing trademarks a century ago.) Phrases need to be understood as units—perhaps they will mean nothing more than the sum of their parts, but perhaps not.

Second, his misdemeanors example ignores context. The Constitution allows impeachment for high crimes and misdemeanors. Thus, the most relevant sense of the word misdemeanor is the sense with which it was used in the context of impeachment. To use the sense not used in the impeachment context would lead to a misreading of the Constitution just as if one argued that the phrase corruption of blood could be understood at the founding to mean one had a blood ailment.

Third, the misdemeanors example relies on a methodology that appears to never eliminate senses, which would lead to communication chaos. Just because a word or phrase has multiple possible senses doesn’t mean each one is activated in a given context. And with statutes, it would make the laws dangerously broad, particular those laws that use words with dozens of senses.

Next in his criticism, Mr. Weisberg appears to reject textualism in favor of some form of intentionalism (this is bolstered by a later sentence where he claims, “There is absolutely no reason to believe that Congress intended to limit the Antiquities Act to objects on dry lands and to exclude objects on submerged lands….”) While conceding that land or lands would be infrequently used to refer to the seafloor, he argues that the legislators probably never gave the distinction much thought and that there is no evidence they deliberately thought to exclude the seafloor sense from the statute. Without perhaps realizing it, he has stumbled upon another interesting theoretical question that textualism has yet to answer (as we noted in our paper): what to do in situations when a broader sense can include a narrower sense, but we think the narrower sense is the ordinary one in that context? Still, his criticisms are of the ordinary meaning inquiry and textualism itself. To the extent textualism’s ordinary meaning inquiry is concerned about notice, then requiring statutes to incorporate rare understandings that few if any would have understood seems deeply problematic. There is no real evidence that Americans around 1906 would have understood the Act to include seafloors, whatever the intent of Congress (and Mr. Weisberg seems to concede it wasn’t really thinking about seafloors either).

Finally, Mr. Weisberg asks, “If that’s what the legislators meant, why isn’t that what they enacted” That is, why didn’t the 1906 Act provide that the president could declare monuments on “dry lands” of the federal government?” Is anyone going to argue that, in 1906, the phrase ‘dry lands’ was not in common use?” Obviously the phrase was in use, though it appears just 3 times from 1900-1909 in the corpus, as compared to lands, which appears 1241 times. Furthermore, when used in those three instances in the decade the Act was adopted, it was in reference to land that did not get much rain and either had to be sowed with a type of wheat suited for such, or irrigated. Of course, dry land could have the meaning that Mr. Weisberg points out the Oxford English Dictionary gives it—land above water. But what he ignores is that nearly every time (that we examined) that Americans around the turn of the 20th century used the word lands or lands (when it wasn’t an irrelevant sense such, as the verb to land or as a synonym for a country), they used it to mean dry land. That was its common or ordinary meaning.

And Mr. Weisberg is silent on the other term from the act we analyzed, parcels of land, and how anyone could read that a statute that authorized Congress to reserve “parcels of land” to protect the objects made national monuments “situated upon the lands” the federal government owned or controlled. No one in the early 20th century used parcels of land to refer to the ocean or seafloor.

In sum, whatever Congress intended, we are stuck with the ordinary meaning of the words it used in the 1906 Act. And people didn’t use these words and phrases to mean anything under the ocean. They therefore would not have understood the Act to cover such. How do we know how they would have understood these words phrases? By how they used them. And if the way a word is most commonly used doesn't determine its meaning, what does?


Ashlee Paxton-Turner: Continental Originalism
Michael Ramsey

Ashlee Paxton-Turner (Independent) has posted Continental Originalism: Keeping Our Republic (27 pages) on SSRN.  Here is the abstract:

This Article accepts that originalism is a powerful and appealing method of constitutional interpretation that continues to gain much attention. That said, to the extent we have to reckon with originalism, the idea of union preservation as the lodestar for the originalist’s constitutional interpretation can make originalism a little more faithful to the historical moment it holds sacred and thus add some legitimacy to judicial opinions at a time when we need it most. Through a close reading of the Federalist Papers—and the historical moment from which they are born—this Article builds a theory of “continental originalism” with union preservation as the originalist’s lodestar. Because if we accept that originalism is not going anywhere anytime soon and we also accept its basic principles, we must then also take seriously the historical point—clearly revealed by the Federalist Papers—that baked into the original meaning, original intent, or the ratifiers’ understanding is this idea of securing the nation’s survival and preserving our union. Plainly put, to keep our republic, we can start by “think[ing] continentally.”


And, on the Third Day, God Created Dry Land and Refuted Corpus Linguistics
David Weisberg

Professors James Cleith Phillips and John Yoo have published a paper arguing that corpus linguistics generates a negative answer to the question: Does the Antiquities Act of 1906, which authorizes the president to declare as national monuments objects of historic or scientific interest situated upon lands owned or controlled by the federal government, authorize the president to make such declarations with regard to objects on the ocean floor?  With all due respect, their paper vividly illustrates why corpus linguistics is dangerously unreliable as a method of legal analysis.

First, accepting the criterion that Phillips and Yoo themselves adopt, corpus linguistics is unsatisfactory on its face.  This is how they summarize the methodology:

[I]f 90% of people would understand a word to mean X in a particular context, and 10% would understand a word to mean Y in that context, textualism would declare X to be the ordinary meaning, as long as X and Y did not overlap or one was not subsumed within the other. Since we cannot survey Americans from the 1900s (and surveying people has its own problems for determining meaning), we will need to turn to corpus data to see if there was a dominant sense of the relevant terms from the Act, at least dominant in how frequently it was used. If there is, that dominant sense is a particular term’s ordinary meaning.

The notion that dominance “in how frequently [a term] was used” in a certain context can somehow be equated with “dominant sense” or “ordinary meaning” is false on its face.  Frequency does not determine or even alter meaning.  Consider the following. 

It’s certain that, when President Trump was impeached and on trial, a survey of written materials published in the U.S. would have found that the word “misdemeanors” overwhelming appeared in the context of “high crimes and misdemeanors,” in which context it meant serious, substantial wrongdoing.  Nevertheless, we all understood that that word also retained what had formerly been its more common usage: a relatively minor, insubstantial infraction.  The frequency of one usage would not have obliterated or changed the meaning of the less-frequent usage.  Even during Trump’s Senate trial, crossing against the light was still a misdemeanor.

Of course, in 1906 (and, I would bet, today) the word “land” or “lands” was used infrequently in discussions of the seafloor.  But it is one thing for legislators not to give any substantial thought to the seafloor, and it is a very different thing for them deliberately to exclude the seafloor from the scope of legislation.  In fact, if they did deliberately exclude the seafloor, one would expect that there would be more frequent use of “land” in that context than if they had never given the matter serious consideration either way.

This brings us directly to the question a statistical methodology, such as corpus linguistics, can never answer: If that’s what the legislators meant, why isn’t that what they enacted?  That is, why didn’t the 1906 Act provide that the president could declare monuments on “dry lands” of the federal government?  Is anyone going to argue that, in 1906, the phrase “dry lands” was not in common use?  The King James version of the Bible, generally accepted as the most widely published English text of all time, says that, on the third day of creation, God gathered the waters together and let “the dry land” appear.  Were legislators in 1906 ignorant of the Bible?  Moreover, the Oxford English Dictionary has a definition of the phrase “dry land”—“Land not submerged or under water; land as opposed to sea.”—which has been valid since the year 1225. This definition establishes that, over the last millennium, competent English speakers have at least implicitly understood that "land" refers to stuff that can be either submerged under water or not.  Whether above or below water, it's still "land".

There is absolutely no reason to believe that Congress intended to limit the Antiquities Act to objects on dry lands and to exclude objects on submerged lands; they could easily have used the phrase “dry lands” if they so intended.  Moreover, there is no reason to believe that underwater objects have less historic or scientific interest than objects on dry lands, even if legislators did not discuss that possibility.  In sum, corpus linguistics provides a clearly incorrect interpretation of the Antiquities Act. 


Mark Pulliam on Sunstein & Vermeule on the Administrative State
Michael Ramsey

At Misrule of Law, Mark Pulliam: Trust Us. We’re Experts. (reviewing [unfavorably] Law & Leviathan by Cass Sunstein and Adrian Vermeule (Belknap Press 2020)).  From the introduction:

In recent years, some (mostly right-of-center) scholars—notably, Philip HamburgerRichard EpsteinGary LawsonPeter Wallison, and John Marini—have written devastating critiques of the administrative state, including challenges to the legality and constitutionality of administrative law itself. These criticisms, although not (yet) sufficient to provoke a wholesale re-thinking of the bureaucratic Leviathan, have prompted small but important course corrections. For example, on the Supreme Court, Justices Neil Gorsuch and Clarence Thomas have recently indicated their intention to push back against Congress’s delegation to agencies of lawmaking authority and to reduce the degree of judicial deference to agency actions (e.g., limiting or overruling the Court’s 1984 Chevron decision). These may seem like minor changes, but they represent radical deviations from decades of established orthodoxy.

... In a recent book, Law & Leviathan, Harvard Law School professors Cass Sunstein and Adrian Vermeule (an odd pairing of, respectively, an Obama administration veteran and a former Scalia clerk who espouses a substitute for originalism that he terms “common-good constitutionalism” and which critics condemn as theocratic integralism) undertake a breezy defense of the status quo, while recommending a few minor tweaks in lieu of dramatic changes.  Both scholars teach administrative law, and their slim book (145 pages of text) evinces an insider’s familiarity with the subject’s technical minutiae (in a field in which such minutiae abounds). Both authors are (separately and together) prolific, and both are significantly invested in preserving the overall model of administrative law as it has emerged since the enactment of the Administrative Procedure Act in 1946. The book, admittedly written by insiders for insiders, assumes that the reader shares their pro-APA worldview, and will nod along in agreement. The administrative law orthodoxy is deeply entrenched in the legal academy. As Michael Greve observed in an essay reviewing Vermeule’s 2016 book, Law’s Abnegation, “administrative law’s arc toward deference simply marks the triumph of a certain legal class.” The book is obviously directed at this sympathetic audience.

And on the originalist aspect of the debate:

Sunstein and Vermeule begin by charging that critics of the administrative state are “best understood as a living-constitutionalist movement,” falsely suggesting that [the critics' view] is unsupported by constitutional text and history. (Elsewhere, the authors undercut this point by stating that “It is not clear that we should be originalists.” Which is it?) Sunstein and Vermeule then erect a straw man, characterizing the critics’ “main concern” as “the overriding fear that the executive will abuse its power.” This is incorrect. The critics’ main concern (keeping in mind that the critics speak with many voices) is that the administrative state violates the constitutional separation of powers—creating a federal Leviathan while simultaneously diluting democratic accountability—in a way that shreds institutional constraints on the growth and reach of the federal government. The issue is not merely “the fear of executive abuse,” as Sunstein and Vermeule claim, but also congressional abdication and judicial acquiescence. 

Moreover, the administrative state denies Americans their freedom to be governed by rules and institutions created by their elective consent. Decrees and regulations issued by unelected bureaucrats reduce citizens to the status of subjects, contrary to the Founders’ intentions. The Progressive concept of “administration” in lieu of representative democracy represents a form of governmental absolutism that sacrifices neutrality, fairness, and due process on the altar of “technical expertise.” The system we dignify with the label “administrative law” is really not law at all—it is an evasion of law, properly understood. Without the benefit of actual legislative direction, or actual courts bound by traditional rules of procedure, agency commands resemble long-discredited prerogative tribunals such as Star Chamber.  The Founders were understandably opposed to “extralegal” power once asserted by English monarchs, and when adopting the Constitution went to great lengths to prevent similar abuses from happening in the federal government.


Larry Solum's Legal Theory Lexicon on the Construction Zone
Michael Ramsey

At Legal Theory Blog, Larry Solum has an entry in his Legal Theory Lexicon for "The Construction Zone".  From the introduction: 

The idea of a "construction zone" is based on the interpretation-construction distinction.  The distinction between "interpretation" and "construction" marks the fundamental conceptual difference between two activities:

Interpretation is the activity that aims to recover the meaning of a legal text, such as a contract, regulation, statute, or constitutional provision.

Construction is the activity that determines the legal effect of text.  For example, in the case of a constitution, construction determines the legal content of constitutional doctrines and the decision of constitutional cases.

This is an old distinction in American legal theory and played a prominent role in the works of the great treatise writers of the second half of the nineteenth century and the first half of the twentieth, but it gradually fell into disuse.  The revival of the interpretation-construction distinction is associated with the "New Originalism" and especially Keith Whittington and Randy Barnett. [Ed.: Professor Solum is too modest to add his own name here, but it obviously belongs; see for example this article.]

And from later on:

Now that we have the idea of a construction zone, we can introduce a contrasting notion.  The "interpretation zone" is the set of issues and cases for which the meaning of the text is determinate.  Some legal texts are fully determinate: once we know what they mean, we know how to apply them.  For example, the Constitution specifies that each state has two Senators: in practice, this provision is fully determinate: issues concerning this provision are in the interpretation zone.

The notion of an interpretation zone is relative to theories of interpretation and construction.  For example, statutory textualists believe that any statutory issue that can be answered by the meaning of the statutory text is in the interpretation zone.  But purposivists may not accept this idea.  Because they believe that the purpose of a statute should determine the statute's legal effect, they reject the idea that clear text automatically resolves questions about the legal effect of a statute.

For counterpoints, see Original Methods Originalism: A New Theory of Interpretation and the Case Against Construction by John McGinnis and Michael Rappaport, and Construction, Originalist Interpretation and the Complete Constitution by Richard Kay.


Second Amendment Public Carry Case now on Petition to the Supreme Court
Michael Ramsey

New York State Rifle and Pistol Association Inc. v. Corlett may be the case to finally get the Supreme Court to answer the question whether the Second Amendment protects a right to carry firearms in public. If so, it is likely to have substantial originalist implications.  Here is the summary statement from the petition for certiorari, filed December 17 by Paul Clement: 

Perhaps the single most important unresolved Second Amendment question after this Court’s landmark decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), is whether the Second Amendment secures the individual right to bear arms for self-defense where confrontations often occur: outside the home.

The text, history, and tradition of the Second Amendment and this Court’s binding precedents compel the conclusion that the Second Amendment does indeed secure that right. As this Court held in Heller, the “right of the people to keep and bear Arms” protects at its core “the individual right to possess and carry weapons in case of confrontation.” 554 U.S. at 592. A law that flatly prohibits ordinary law-abiding citizens from carrying a handgun for self-defense outside the home cannot be reconciled with the Court’s affirmation of the individual right to possess and carry weapons in case of confrontation. The Second Amendment does not exist to protect only the rights of the happy few who distinguish themselves from the body of “the people” through some “proper cause.” To the contrary, the Second Amendment exists to protect the rights of all the people.

Despite the wealth of authority confirming that the Second Amendment guarantees the people’s right to keep and bear arms for self-defense outside the home, several courts of appeals continue to resist that conclusion, leaving the law in a state of chaos and the fundamental right to carry a firearm dependent on where one lives. The D.C. Circuit has seen these restrictive regimes for what they are—“necessarily a total ban on most D.C. residents’ right to carry a gun”—and joined the Seventh Circuit in concluding that the government may not prohibit ordinary law abiding citizens from carrying handguns for self defense. See Wrenn v. District of Columbia, 864 F.3d 650, 666 (D.C. Cir. 2017); Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012). But the Second Circuit upheld New York’s materially identical regime, on the basis that the Second Amendment right of self-defense is subject to state control. In other words, in its view, the Second Amendment may protect a fundamental, individual right of the “people,” but the state may fundamentally and individually dictate which people (if any) may exercise that right. See Kachalsky v. Cty. of Westchester, 701 F.3d 81 (2d Cir. 2012). This view is untenable.

Unfortunately, the Second Circuit is not alone in that view. The First, Third, and Fourth Circuits have likewise endorsed restrictions that cut off the right to keep and bear arms at a homeowner’s door. Common sense dictates that the need for armed self-defense (i.e., cases of confrontation) is not confined to the interior of a home. And yet, these courts seem unconcerned with regimes in which the exercise of a right that the Constitution guarantees to all “the people” is instead deemed a crime unless one can preemptively convince a state official that she enjoys an especially good reason for wanting to exercise it. See Gould v. Morgan, 907 F.3d 659 (1st Cir. 2018); Drake v. Filko, 724 F.3d 426 (3d Cir. 2013); Woollard v. Gallagher, 712 F.3d 865 (4th Cir. 2013). Such decisions stand in clear conflict with the D.C. Circuit’s Wrenn decision and the Seventh Circuit’s Moore decision. The circuits are thus in open and acknowledged division over the constitutionality of laws denying ordinary law-abiding citizens their right to carry a handgun for self-defense. This Court should grant certiorari, resolve this untenable circuit split, and restore to all “the people” protected by the Second Amendment the right to keep and bear arms.

As the petition notes later, panels of the Ninth Circuit have twice upheld the right, using strongly originalist analyses, but each decision was vacated by the en banc process. Peruta v. Cty. of San Diego, 742 F.3d 1144, 1167 (9th Cir. 2014), vacated, rev’d on reh’g en banc, 824 F.3d 919, 942 (9th Cir. 2016); Young v. Hawaii, 896 F.3d 1044 (9th Cir. 2018), vacated, reh’g en banc granted, 915 F.3d 681 (9th Cir. 2019). (My former student Alan Beck argued the latter case for the claimant.)

Via Robert VerBruggen at NRO, who comments:

Since the previous Supreme Court cases, some academics have purported to find strong evidence that, instead, the term ["bear arms"] overwhelmingly referred to military-related activity in Founding-era writings. I find their methods unimpressive — here’s a good demonstration of the problem with counting a term’s uses and pretending that’s the same as defining the term, and here’s a more positive take on the method that also discusses its limits. Further, their conclusion flies in the face of several direct analogues to the Second Amendment, including state declarations of rights. These provisions protected the right of the people to bear arms “for the defense of themselves and the state,” “for the defense of the state” (which would be redundant if “bear arms” inherently referred to the defense of the state), and even “for the purpose of killing game.” But I’m curious what the Court and especially its conservatives will make of this new evidence.


Richard Murphy on Nicholas Parrillo on Nondelegation
Michael Ramsey

At Jotwell, Richard Murphy (Texas Tech): The Nondelegation Doctrine and a Deep Dive into Federal Taxation of Real Estate in 1798 that You Didn’t Even Know You Needed.  From the introduction:

In response to this prospect [of a reinvigorated nondelegation doctrine], three leading scholars of administrative law have recently produced two major law review articles that deploy originalist arguments to debunk the nondelegation doctrine. Professors Julian Mortenson and Nicholas Bagley, based on a wide-ranging survey of Anglo-American legal thought before and after 1789, conclude that “the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory.” (Delegation at the Founding121 Columbia L. Rev. (forthcoming 2021)) Turning to practice, they identify numerous delegations of generous grants of discretionary rulemaking authority to administrative authorities from the very early years of the Republic. In their view, squaring this history with a meaningful nondelegation doctrine requires too many gerrymandered exceptions to be remotely persuasive. Delegation at the Founding, which does not pull any punches, has already generated a great deal of discussion in law reviews and the blogosphere. For one of several rejoinders, you might check out, Ilan Wurman’s Nondelegation at the Founding, forthcoming in the Yale Law Journal.

The other major salvo, and the subject of the remainder of this jot, is Professor Nicholas Parrillo’s splendid article with the really long title, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, which will be published next year in the Yale Law Journal. This article, too, examines early congressional legislation to shed light on whether the original understanding of the Constitution demands a nondelegation doctrine with sharp teeth. Rather than go for the magisterial sweep in the fashion of Mortensen and Bagley, however, Parrillo instead goes for the deep dive, exploring for over one hundred pages the discretionary powers that Congress granted to administrators to implement a tax on real estate that Congress imposed in 1798.

To explain why this 1798 tax is so important, Professor Parrillo notes that proponents of a strong nondelegation doctrine often try to explain away early congressional delegations by arguing that they fall into exceptions that allow more constitutional room for rulemaking. For instance, greater administrative discretion is permissible for foreign and military affairs because they fall within the natural domain of the executive in any event. Also, Congress can grant rulemaking discretion to administrative authorities to determine how to allocate benefits, services, and privileges. On this view, the nondelegation doctrine does, however, bar Congress from delegating to administrative authorities the power to promulgate “coercive regulation[s] of private rights and private conduct.” (P. 9.)

One way to combat the nondelegation doctrine in this limited form is to contend, as Mortensen and Bagley do, that the exceptions represent an implausible effort to save the doctrine from the evidence of history. Another way is to find early congressional delegations that in point of fact did grant agencies coercive power over private rights. And, in the form of the 1798 federal real estate tax, Professor Parrillo has found just such a delegation....

Mike Rappaport adds: Parrillo will be giving his paper at the 12th Annual Hugh & Hazel Darling Originalism Works in Progress Conference to be held in February


James Cleith Phillips & John Yoo: The Ordinary Meaning of the Antiquities Act of 1906
Michael Ramsey

James Cleith Phillips (Chapman University, The Dale E. Fowler School of Law) and John Yoo (University of California at Berkeley School of Law; American Enterprise Institute; Stanford University - The Hoover Institution on War, Revolution and Peace) have posted The Ordinary Meaning of the Antiquities Act of 1906: A Corpus Linguistic Analysis (37 pages) on SSRN.  Here is the abstract:

The Antiquities Act of 1906 authorized presidents to declare to be national monuments objects that were situated upon lands owned or controlled by the federal government. Further, the Act allowed the president to reserves parcels of land around the object to protect it. In recent years, Presidents Bush and Obama have relied on the Act to declare objects such as coral reefs and sea canyons to be national monuments, reserving millions of square miles of ocean for their protection.

This essay seeks to determine what the ordinary meaning of the Act was in 1906. Relying on the Corpus of Historical American English (COHA), the paper finds that American English leading up to and around the time of the adoption of the Act did not use the terms and phrases in the Act to refer to anything found under the ocean. The ordinary meaning of the Act, then, would appear to not authorize the marine monuments created by recent presidents.

(Via Larry Solum at Legal Theory Blog.)


Disqualifications and Officers [Updated with a Comment from Martin Lederman]
John Vlahoplus

Regarding this post about General Austin, Section 8 of the 1789 Act  creating the Treasury Department provided “[t]hat no person appointed to any office instituted by this act, shall directly or indirectly be concerned or interested in carrying on the business of trade or commerce, or be owner in whole or in part, of any sea vessel,” or carry on a variety of other conflict of interest transactions.  It punished violators by a fine, removal from office, and permanent disqualification from holding any office under the United States. 

The potential for a conflict of interest from a prior position differs little from that of a current outside interest.  Disqualification for either reason restricts the president’s selection power.  Permanent disqualification restricts the selection power of all presidents, current and future, even further.  Yet the First Congress thought that it had the power to disqualify candidates for presidentially appointed offices, both temporarily and permanently.

The Treasury Act specified violations to be high misdemeanors.  So violators could be impeached, which would be consistent with the sanctions of removal from office and disqualification from future offices.  But the Constitution forbids fines as sanctions for impeachment.  Congress created a shortcut to the Constitution's two step process of impeachment/conviction and subsequent criminal trial.  Moreover, it delegated its powers of removal and permanent disqualification to prosecutors and criminal courts--apparently without waiving its power to impeach and convict independently if it acted before a criminal prosecution or even after a criminal acquittal.  The First Congress was quite comfortable with delegation.

MICHAEL RAMSEY ADDS:  A supporting comment from Martin Lederman (Georgetown):

Check out pages 264-275 of Brandeis's opinion in Myers, listing countless such statutes (yup, eleven pages of footnotes worth).  And even Taft's opinion in Myers v. United States -- the high-water mark of executive authority pre-Seila Law -- concedes this power:

It is argued that the denial of the legislative power to regulate removals in some way involves the denial of power to prescribe qualifications for office, or reasonable classification for promotion, and yet that has been often exercised.  We see no conflict between the latter power and that of appointment and removal, provided, of course, that the qualifications do not so limit selection and so trench upon executive choice as to be, in effect, legislative designation. ...

Article II expressly and by implication withholds from Congress power to determine who shall appoint and who shall remove except as to inferior offices.  To Congress under its legislative power is given the establishment of offices, the determination of their functions and jurisdiction, the prescribing of reasonable and relevant qualifications and rules of eligibility of appointees, and the fixing of the term for which they are to be appointed, and their compensation—all except as otherwise provided by the Constitution. 

This is the modern Executive branch view, embracing the canonical statement by AG Akerman.