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32 posts from February 2021

02/28/2021

James Ely: A Brief History of Just Compensation in the Nineteenth Century
Michael Ramsey

James W. Ely (Vanderbilt University - Law School) has posted “all temperate and civilized governments;” A Brief History of Just Compensation in the Nineteenth Century (Brigham-Kanner Property Rights Journal, Volume 10, 2021) (60 pages) on SSRN.  Here is the abstract:

This article explores the origins of the “just compensation” principle, the rationale behind the compensation requirement, and attempts to define the scope of “just compensation” throughout the Nineteenth Century. It traces the sources of the compensation requirement when property is acquired by eminent domain to English common law and the influence of natural law theorists. Courts in the United States early took the position that payment of compensation was a fundamental principle of universal application even if written constitutions contained no express compensation provision. The Fifth Amendment takings clause was seen as simply an affirmation of this overarching principle.

The compensation norm was understood as a matter of “natural equity,” so that the burden of public projects was shared by the community as a whole rather than fall upon a single individual. Moreover, from the outset courts insisted that the determination of the amount of just compensation was a question for the judiciary, and that the legislature could not fix the measure of compensation.

The article examines at length the evolution of “just compensation” during the Nineteenth Century. Where an entire parcel was taken, courts gravitated to the fair market value as the appropriate standard for compensation. Yet ascertaining fair market value posed difficulties, and many commentators charged that this standard did not provide adequate compensation to owners. Partial takings presented even more complicated problems. Lawmakers commonly mandated that in such cases the alleged benefits resulting from a project to the remaining land should be offset against the loss suffered by the owner, thus reducing any monetary compensation. Critics argued that supposed advantages were often illusory or inequitably benefited the entire community not the particular owner. The article probes the constitutional issues, as well as the confusion and uncertainty, arising from the offset of benefits. It also considers and questions the contested subsidy thesis, which holds that the offset of benefits amounted to a subsidy to transportation companies, especially railroads, by minimizing the expense of acquiring rights of way by eminent domain.

Noting a gap between judicial rhetoric extolling the importance of private property and the frequent practice of awarding inadequate compensation when property was taken by eminent domain, the article concludes by suggesting that undercompensation was a legacy of the Nineteenth Century. In this connection, it looks at some recent cases in which courts stopped short of awarding full compensation.

02/27/2021

John McGinnis Reviews Dennis Rasmussen's "The Disillusionment of America’s Founders"
Michael Ramsey

At Law & Liberty, John McGinnis: “Sinking in Luxury, Sloth, and Vice” (reviewing Dennis Rasmussen [Syracuse University],  Fears of a Setting Sun: The Disillusionment of America’s Founders (Princeton Univ. Press 2021)). From the introduction: 

Never in my adult lifetime has there been a greater sense of political despondency in America. This summer witnessed riots across major cities, and this winter, a riot for the first time impeded the vote-counting of the Electoral College. Domestically, polarization and partisanship are at historic highs. Abroad, a more powerful and shrewder communist adversary has emerged in China than we have ever faced before.

In Fears of a Setting Sun: The Disillusionment of America’s Founders, a magisterial survey of the Founders’ deep pessimism about the likely fate of our republic, Dennis Rasmussen brings a paradoxically optimistic message. If these wise men were so doubtful about the nation’s prospect in their own difficult times, and the nation nevertheless survived and ultimately thrived, perhaps we should become more confident about our own future. The dynamic society they bequeathed has powered on, surmounting, or at least containing, one set of dire problems after another.

...

Rasmussen’s assemblage of the Founders’ profound doubts about America is creative and thought-provoking at every turn. He considers George Washington, Alexander Hamilton, John Adams, Thomas Jefferson, and James Madison. Upon leaving office, all but the last despaired of the nation which they had labored so long to create and nurture. Rasmussen sketches how each became unhappy in his own way.

In conclusion:

Indeed, only Madison comes off as someone comfortable with the tenets of modern liberalism, where pluralist factions ceaselessly battle, and politics is an unending argument without any shared understanding of the common good. For the other founders, common purpose needed to be found in virtue, religion, or local bonds. Otherwise, the foundation on which any written constitution depends would not hold.

That central problem that these Founders identified has become only more acute today. The 1619 project even challenges the possibility of having a center that rests on a shared understanding of a respected past, let alone unity on common present goals. And the fragmentation that comes from social media and identity politics alike makes the divisions the Founders knew seem relatively tractable. Reading this remarkable book, I wish I could share the author’s closing sentiments. But as an older man, much like the Founders at the time Rasmussen canvasses them, I worry that there is a fundamental problem with the endurance of written constitutions, even a great one like the American Constitution.

A constitution is not a machine that goes by itself but an organism that gets life from the social and political culture around it. And that culture has been as unfriendly to our union as at any time in the modern history of the United States. That may not be an accident of the Constitution but a consequence of the liberal society it has sustained. Precisely because of its success in giving everyone the opportunity to pursue disparate goals, and now even claim distinct identities, a liberal constitution washes away the common soil, however thin, that is needed for its preservation. That we retained enough of it in the past is no guarantee that we will do so in the future.

And here is the book description from Amazon: 

The surprising story of how George Washington, Alexander Hamilton, John Adams, and Thomas Jefferson came to despair for the future of the nation they had created

Americans seldom deify their Founding Fathers any longer, but they do still tend to venerate the Constitution and the republican government that the founders created. Strikingly, the founders themselves were far less confident in what they had wrought, particularly by the end of their lives. In fact, most of them―including George Washington, Alexander Hamilton, John Adams, and Thomas Jefferson―came to deem America’s constitutional experiment an utter failure that was unlikely to last beyond their own generation. Fears of a Setting Sun is the first book to tell the fascinating and too-little-known story of the founders’ disillusionment.

As Dennis Rasmussen shows, the founders’ pessimism had a variety of sources: Washington lost his faith in America’s political system above all because of the rise of partisanship, Hamilton because he felt that the federal government was too weak, Adams because he believed that the people lacked civic virtue, and Jefferson because of sectional divisions laid bare by the spread of slavery. The one major founder who retained his faith in America’s constitutional order to the end was James Madison, and the book also explores why he remained relatively optimistic when so many of his compatriots did not. As much as Americans today may worry about their country’s future, Rasmussen reveals, the founders faced even graver problems and harbored even deeper misgivings.

A vividly written account of a chapter of American history that has received too little attention, Fears of a Setting Sun will change the way that you look at the American founding, the Constitution, and indeed the United States itself.

02/26/2021

Republican Party of Pennsylvania v. Degraffenreid: A Defense of Denial
Michael Ramsey

Earlier this week the Supreme Court denied certiorari in Republican Party of Pennsylvania v. Degraffenreid, the challenge to the change in voting procedures prior to the 2020 election.  The Court's two strongest originalists, Justices Thomas and Gorsuch, dissented, along with Justice Alito.  (Josh Blackman has more at Volokh Conspiracy: Making sense of Republican Party of Pennsylvania v. Degraffenreid).

The denial has been criticized sharply in some circles (see here from the Wall Street Journal and here -- more sharply -- from Ken Masugi).  I think the criticism is mistaken for the reasons described below.

The petitioners' arguments seem strong (in originalist terms) on the merits.  The claim is that the Pennsylvania Supreme Court changed the procedures for the election contrary to state law, as set by the state legislature, in violation of the U.S. Constitution's direction (Art. II, .Sec. 1) that a state's electors shall be chosen in the manner prescribed by "the Legislature thereof" and that (Art, I, Sec. 4) "the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof."

But the case is moot.  The petitioners apparently don't dispute that the number of votes at issue isn't enough to have affected the presidential election in Pennsylvania, or any election for any other federal office.  The dissenting opinions of Justice Thomas and of Justice Alito (joined by Justice Gorsuch) acknowledged this.

The dissents rely instead on the exception to mootness for issues "capable of repetition yet evading review."  I'm not sure that that exception actually applies on the facts.  Why can't the issue be decided prior to a future election, if the issue comes up and if the parties and the courts move a little faster?  Indeed, as Thomas and Alito both acknowledge, the issue in this cases came to the Court on an emergency petition before the election and the Court (for whatever reason) refused to hear it.   But anyway, originalists should be wary of relying on the exception.

Let's assume that Article III's references to "judicial Power" and "Cases, in Law and Equity, arising under this Constitution" as an original matter exclude federal courts from deciding moot cases.  If this is a jurisdictional limit on the federal courts, federal courts can't just invent an exception when it seems convenient.  And I'm not aware of an argument that the "capable of repetition yet evading review" is anything but a judicially invented exception.  

The modern exception is mostly closely associated with Roe v. Wade.  That case provides no justification for it aside from a cite to Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, (1911), which in turn cites two other cases from roughly the same period, all to the effect that sometimes it's useful for courts to give guidance even when the immediate controversy has become moot.  The Court has applied the exception recently, including in Kingdomware Technologies Inc. v. United States, 136 S.Ct. 1969 (2016), in a unanimous opinion by Justice Thomas.  But Kingdomware also has no originalist analysis in support of the exception (even though it confirms that the general rule against deciding moot cases rests on Article III).

Now maybe the exception dates back further than that, to eighteenth-century English and U.S. practice, which would likely make it appropriate on originalist grounds.  But the cases don't say that it does, and the Degraffenreid dissents by Justice Thomas and Alito don't say so either.  And even if it does, we don't know the scope of the historical exception nor whether it would apply on the Degraffenreid facts.  The case seems to me very much akin to a request for an advisory opinion about the Constitution's limits on state courts in the election context.

For these reasons it seems appropriate for the Court to refrain from deciding the case, and questionable whether originalist Justices should insist on it doing so (especially in a matter such as certiorari, which is entirely in the Court's discretion).

In any event, it seems like a good topic for an academic originalist analysis (assuming there isn't already a definitive one out there).

ANDREW HYMAN ADDS: The leading article on the subject of mootness and its exceptions in England seems to be this one: Alex Shattock, The A Word: Academic Appeals in Public Law Challenges  (Judicial Review Volume 24, 2019 - Issue 4), available here.  You can see the first page for free, but the rest will cost you 45 bucks. 

02/25/2021

Dan McLaughlin on Josh Hammer on Common Good Originalism
Michael Ramsey

At NRO, Dan McLaughlin: Originalism Does Not Need a Makeover (responding to this essay by Josh Hammer).  From the introduction:

Newsweek opinion editor Josh Hammer argues at Public Discourse that conservatives should replace originalism with a new, refined judicial philosophy named “common-good originalism.” Hammer is a sharp guy, and one assumes that his is the best argument that could be made for this proposal. His argument is, however, unspecific in its critiques, vague in its proposals, unmoored from constitutional legitimacy, and unsound as strategy. That suggests that the problem is not the messenger, but the message.

. . .

Why complain about originalism? No other conservative idea has penetrated so far into both elite institutions and popular opinion in the past three decades than originalism has. Among all the elements of the post-Cold War conservative coalition, only gun-rights advocates have been arguably more successful in pressing their public-policy vision than originalists have, and the cause of gun rights has itself relied heavily on an originalist reading of the Constitution. Almost alone among conservative ideas in recent decades, originalism has compelled even its enemies in the liberal academy to contend on its turf, and has succeeded in staffing the power centers of the federal government with many of its adherents. Textualism has, if anything, been even more resoundingly successful, even among liberals.

. . .

So, what is Hammer’s grievance? What questions of American law have originalists decided wrongly? Amazingly, he identifies only one case, and it is a case involving the interpretation of a statute passed in 1964, in which three of the Court’s four avowed originalists at the time dissented. So, this entire dispute is about Justice Neil Gorsuch’s majority opinion in Bostock v. Clayton County. ...

From further along:

What are the rules of common-good originalism, and what are its constraints? Hammer frames his own standard as “intrinsically oriented toward substantive conservatism” and a “more pliable” aid to “a complementary populist-inspired conservative politics eager to exercise political power in the service of good political order.” That doesn’t tell us very much except that it is supposed to deliver outcomes we like. He offers, as the foundational text, the preamble to the Constitution ...

... [A]ppealing to the general purposes of government is a convenient sleight of hand to avoid discussing the specific powers and limitations of government. A judicial philosophy that invokes the purposes of the preamble lacks the language in which to criticize a differing view of what the “general Welfare” empowers the government to do.

And in conclusion:

But Hammer’s call for reworking the entire intellectual basis of originalism and textualism is suicidal as a practical strategy. It eliminates the appeal that originalism has to people who are not hard-core social conservatives: its intellectual rigor and grounding in popular legitimacy. That narrows the base of support already enjoyed by the conservative approach to law.

It also simply assumes, without experience or evidence, that expanding the discretion of judges will lead to more conservative victories rather than a rout of conservatives at the hands of the culture of the legal profession. This is the fallacy of Vermeulism, so named for Adrian Vermeule (whose work I’ve discussed here and here): The idea that unchecked, unaccountable, undemocratic discretion should be given to institutions in which left-leaning culture or personnel are dominant, in the hopes that someday, by some unspecified mechanism, they will come to be controlled by social conservatives. The cavalry will simply appear over yonder hill, and ride through the institutions. For my part, rather than engage in novel feats of ideological utopianism, I prefer to take the world as it is. That means defending the heritage of the American Constitution as a government of laws, not of men.

02/24/2021

Chris Land: The Origination Clause's Missing Piece
Michael Ramsey

Chris Land (Northwestern University Pritzker School of Law) has posted The Origination Clause's Missing Piece (Tennessee Law Review, Vol. 87, No. 4, 2021) (32 pages) on SSRN.  Here is the abstract: 

The Origination Clause is nearly constitutional surplusage today. The scope of the Clause has been limited by the U.S. Supreme Court to a very narrow class of revenue legislation that emerges from the U.S. House of Representatives.

This Article, for the first time, analyzes historical evidence that the U.S. Supreme Court has defined the constitutional scope of “Bills for raising Revenue”—and the concomitant reach of the Clause—in a manner that fails to account for Revolutionary-era British revenue legislation. Four of the five bills passed by the British Parliament which contributed to the outbreak of the Revolutionary War, i.e., the Sugar Act 1764, Stamp Act 1765, American Colonies Act/Declaratory Act 1766, Revenue Act 1767 and the Tea Act 1773, were considered by the Revolutionary-era generation to be “Bills for raising Revenue.” These measures were largely the genesis of the slogan “taxation without representation.

Under U.S. Supreme Court precedent today, none of these Revolutionary-era measures would likely be subject to the Origination Clause because each bill raised revenue for a specific governmental purpose, e.g., the defense of the American colonies, the enforcement of anti-smuggling laws and other specific, directed purposes. Though Origination Clause precedent has supposedly been rooted by the Court in “the history of the origin of the power,” Origination Clause cases make it clear that only those bills that raise “revenue to support government generally,” i.e., undesignated revenue-raisers, are subject to the Origination Clause’s requirements.

This Article contends that this approach is largely unsupported by the historical record and that our modern application of the Origination Clause is missing an important piece—the Revolutionary-era generation’s view of the legislation which truly constitutes “Bills for raising Revenue.”

Via Larry Solum at Legal Theory Blog, who says "Highly recommended."

If I'm reading the paper correctly, the problem in the Court's cases started at the turn of the nineteenth century, in Twin City Bank v. Nebeker, 167 U.S. 196 (1896) and Millard v. Roberts, 202 U.S. 429, 436 (1906).  That should not be surprising.  Despite claims that nonoriginalism is a more recent development, the late-nineteenth century Court was not reliably textualist or originalist (though it had its originalist moments).

02/23/2021

Rob Natelson on Impeachment and Methodology
Michael Ramsey

At the Federalist Society Blog, Rob Natelson: How to Research the Constitutionality of Impeaching Former Presidents. From the introduction: 

[M]ost impeachment commentary seems to suffer from the handicap of being politically-driven. It often appears around the time a president has been, or is about to be, impeached, and the author writes to cheer on, or pan, the procedure. In such circumstances, the temptation is to seek pleasing evidence and overlook displeasing evidence. Material previously adduced passes through a distorted lens, and is distorted by the passage.

Legal scholars should re-examine the constitutionality of late impeachment when the subject has become a matter of public indifference—when no prospective impeachments are in sight and scholars can work behind a veil of ignorance about the future. Admittedly, it will then be harder to convince student law review editors to accept impeachment articles: The subject will no longer be “hot.” But the product will be better, and more long-lasting.

In this post, I offer a method for proceeding when we reach that time.

In summary:

Again, my purpose is not to answer the question of whether late impeachment is permissible. My purpose here is to suggest a framework for answering the question, as follows:

First, acknowledge that the Constitution’s language creates an evidentiary presumption against late impeachment. Next, go outside the document to collect contemporaneous evidence of meaning/understanding. Finally, determine if the weight of that contemporaneous evidence is sufficient to rebut the presumption created by the text.

Sounds exactly right to me.  And I think (as the author surely intends) that this is generalizable to most originalist inquiries.

I have two quick points to add.  First, the burden of proof question in originalist analysis is sometimes described as a single step: is there enough originalist evidence of a particular position (with debates over whether the claimant or the government bears the burden as a general matter).  But I think Professor Natelson rightly describes it (at least for textualist originalists) in two steps: (1) what does the text on its face appear to say, and (2) is there non-textual originalist evidence sufficient to overcome that apparent meaning. Importantly, that suggests that sometimes the government will have the burden of producing nontextual originalist evidence and sometimes it won't.  (Of course, there will be disputes about which way the text on its face points, as in the late impeachment context.)

Second, I think the text can establish presumptions of varying strength depending on how clear it is.  Text that appears very clear on its face should only be overcome by very clear nontextual originalist evidence to the contrary.  Text that is nearly ambiguous doesn't require much nontextual originalist evidence to shift from one meaning to another.  (I think this is a logical extension of Professor Natelson's framework with which he would agree).

02/22/2021

Alex Sinha: Original(ism) Sin
Michael Ramsey

G. Alex Sinha (Quinnipiac University School of Law) has posted Original(ism) Sin (43 pages) on SSRN.  Here is the abstract:

For all the celebrated brilliance of the Framers, the Constitution betrays deep moral failings we would never countenance today. These failings, such as the original Constitution’s overt racism and abidance of slavery, made their way into the document because the drafters and ratifiers represented a narrow, privileged, homogeneous slice of the American population. The Framing excluded others—such as women, racial minorities, and those with fewer assets—due to their diminished social station. This bare fact is profoundly troubling, yet in some respects irremediable. Its implications are also surprisingly evasive. Some feminist and critical race scholars have highlighted the problem of constitutional exclusion in powerful fashion. Constitutional scholars have typically interpreted (and rejected) that objection as a challenge to the democratic or popular legitimacy of the Constitution, or as a general, perhaps amorphous concern that the Framing “contaminated” the Constitution or otherwise alienates systemically disadvantaged groups.

This Article offers a novel, broad and consequential interpretation of the problem of constitutional exclusion. It argues that concern about exclusion is, first and foremost, a concern about inequality, and more specifically a concern about the preclusion of racial minorities, women, and less wealthy Americans, as moral inferiors, from playing a role in laying the legal and political cornerstones of our Republic. Inequalities reinforced through subsequent constitutional adjudication—and the substantive disadvantages that persist in the life outcomes of members of excluded groups—take on a particularly sharp form when understood as compounding constitutional exclusion. Reframing the problem in this way reveals the basis for its persistence.

Understood as a problem of inequality, constitutional exclusion also highlights a commonly shared but generally hidden assumption: that the law—and the Constitution in particular—should inspire us morally. This hidden assumption about law’s moral role is a central feature of virtue jurisprudence, a burgeoning theoretical approach that analyzes the law primarily in terms of its relationship to the individual virtues (like courage and wisdom) of those it governs. The Article thus argues that our increasing recognition of the significance of constitutional exclusion, once properly defined, betrays an underappreciated affinity for virtue jurisprudence.

Finally, the Article illuminates how exclusion-as-inequality poses an especially serious challenge to originalism, particularly when viewed through the lens of virtue jurisprudence. Originalism urges the resolution of constitutional questions by appeal to a temporally-fixed, original understanding of the Constitution, and it is the preferred methodology of a significant proportion of the federal judiciary. It is therefore a prominent approach that seeks to entrench rather than jettison certain inequalities embedded in the Constitution, sapping the power of the Constitution to model virtue for the public. The tension between virtue jurisprudence and originalism is of significant theoretical importance because virtue jurisprudence is especially popular among scholars with originalist inclinations. Scholars drawn both to originalism and to virtue jurisprudence therefore face a serious dilemma concerning which to select.

02/21/2021

The Federal Anti-Bribery Statute of 1790 Doesn't Prove that the U.S. Presidency is Not an Office of Honor, Trust, or Profit Under the United States
Andrew Hyman

There has been considerable discussion recently about whether the U.S. Constitution bars the U.S. President from simultaneously being a U.S. Senator or Representative; bars him from accepting presents, emoluments, and offices from foreign nations without the consent of Congress; and allows the U.S. Senate to bar him from returning to the presidency after being impeached and removed.  Many people have written on this subject, and I have argued in the affirmative because the President is an "officer under the United States" subject to all those generic constitutional prohibitions.  
 
Professors Seth Barrett Tillman and Josh Blackman have written a new blog post arguing the other side, in which they point to a federal anti-bribery statute from 1790, which says that a defendant convicted of bribing a federal judge....
 
shall forever be disqualified to hold any office of honor, trust, or profit under the United States.
 
Since the President's qualifications are to be found exclusively in the Constitution, ergo (they suggest) the presidency must not be within the meaning of the term "office...under the United States" as described in this 1790 statute, and therefore presumably not within the meaning of that same term in the Constitution itself.  This is not a new suggestion; for example, Professor Tillman wrote about it in a 2013 law review article (see p. 316).  I disagree, because there is a big difference between a criminal disqualification and a civil disqualification, and the Constitution refers only to the latter in Article II, Section 1:
 
No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.
 
Same for the 22nd Amendment which disqualifies people who have already served two terms, which is a civil rather than criminal provision.  Consequently, the expressio unius canon bars Congress from adding further disqualifying characteristics of a civil nature, whereas disqualifying convicted criminals is quite another matter, especially if the disqualification is explicitly stated in a federal statute in advance, rather than merely being asserted retroactively when an elected convicted criminal requests to be seated in Congress.  In short, the 1790 statute does not show that the President is not an officer under the United States.
 
Professors Blackman and Tillman mention Federalist 52 by James Madison, which is relevant here even though it discusses qualifications for members of Congress instead of presidents, and it's well worth quoting at length:
 
A representative of the United States must be of the age of twenty-five years; must have been seven years a citizen of the United States; must, at the time of his election, be an inhabitant of the State he is to represent; and, during the time of his service, must be in no office under the United States. Under these reasonable limitations, the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.
 
This is a proper use of the expressio unius canon; Madison lists a bunch of civil qualifications, and then concludes that a bunch of other civil qualifications are impermissible.  Tellingly, Madison did not add anything like this: "whether convicted criminal or innocent citizen."  I do not mean to suggest that Congress can (or cannot) bar criminals from being seated, but if Congress cannot do that, then it is likely because (per Hamilton), "Its authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections" (see Federalist 60), rather than because any list of qualifications in the Constitution is exclusive per expressio unius.  Notice that that time, place, and manner language of Article I forms a list that excludes items not listed, whereas Article II does not include such a list pertaining to presidential elections (that is, Article II does not seem to create any “presidential exception” to the usual power of Congress to impose disqualification for federal office as a punishment for federal crimes).
 
Even if the Constitution bars Congress from using presidential disqualification as a punishment for federal crimes (and I doubt it does for the reasons explained above), that could easily be understood as creating an exception to the general rule provided by the 1790 anti-bribery statute, instead of proving how the founders defined “officer” or “officer under the United States.”  After all, the 1790 statute did not say, “shall forever be disqualified to hold any office of honor, trust, or profit under the United States including the presidency.”
 
Although Blackman and Tillman go on to discuss Section Three of the Fourteenth Amendment, I'll refrain from going there now.  I just wanted to point out that the implications of the 1790 anti-bribery statute are not as profound as Blackman and Tillman make out.

Josh Hammer on Common Good Originalism
Michael Ramsey

At Public Discourse, Josh Hammer: Toward a New Jurisprudential Consensus: Common Good Originalism.  From the introduction:

I call my jurisprudential framework “common good originalism,” and I would humbly submit that it be adopted as conservatives’ new legal standard-bearer—a worthy complement to other simultaneously unfolding New Right/“new consensus” intellectual efforts.

...

[What is needed is] a flavor of originalist jurisprudence that is substantively conservative as such and not strictly positivist or value-neutral. Moreover, this substantively conservative hue of originalism must eschew the libertarian-infused “strict constructionism” that idolizes limitations on governmental power and individual-autonomy maximization. It should prefer instead a looser, “comfortable [jurisprudential] garment” that allows constitutional actors more ample room to pursue the traditional conservative political goals of justice, human flourishing, and the common good within their constitutionally allocated spheres of influence. Put more simply: The concerns of nation, community, and family alike must be prioritized over the one-way push toward ever-greater economic, sexual, and cultural liberationism. And this must be true not merely as a matter of public policy, but as a matter of legal interpretation.

There is nothing disreputable or otherwise illegitimate about a methodology of originalist constitutional interpretation—or, for that matter, statutory construction—that is intrinsically oriented toward substantive conservatism. On the contrary, progressive and libertarian strands of originalism, as they have been theorized, both already achieve this for their own respective political philosophies. Rather, it is conservative originalism—insofar as the term refers to the largely positivist, proceduralist, and judicial restraint-emphasizing mode of jurisprudence most closely associated with those like Scalia and the late Judge Robert Bork—that is the originalist family outlier, due to its lack of any intrinsic substantive orientation. To the extent that conservative originalism purports to elevate judicial actors as somehow truly morally neutral, even on the most rudimentary of civilizational issues, it is not merely a methodological outlier—it is also at odds with human nature itself, thus making it profoundly un-conservative.

Common good originalism turns this outlier status on its head by offering a genuinely, earnestly  conservative  jurisprudence. The originalism of Founding-era luminaries such as Alexander Hamilton, Chief Justice John Marshall, and Justice James Wilson was centered on the common good that is our true Anglo-American inheritance, going back to the English common law. It rejects both insipid positivism and hapless literalism—encapsulated by Cohen  v.  California’s  “one man’s vulgarity is another’s lyric” sophistry and Gorsuch’s Bostock casuistry, respectively. It seeks to rehabilitate from the fringes of contemporary originalist theory the exegetical legitimacy of ratio legis, or “reason of the law,” that necessarily undergirds our Constitution and all statutes enacted into law pursuant thereto. It emphasizes that it is impossible to truly understand the meaning of any legal text without grappling with the idiosyncratic teleology of that text. And while it recognizes and appreciates the importance of the Constitution’s carefully devised structural safeguards—namely, federalism and the separation of powers—it is also more pliable, contra Jeffersonian “strict constructionism,” and thus more suitable to a complementary populist-inspired conservative politics eager to exercise political power in the service of good political order.

(Thanks to Mark Pulliam for the pointer.)

02/20/2021

More from Josh Blackman and Seth Barrett Tillman on the President and "Office[s] under the United States"
Michael Ramsey

At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman: If Donald Trump is Convicted of Violating 18 U.S.C. § 2383, Will He Be Disqualified From Serving As President?  From the introduction:

... This post focuses on the consequences should Trump be convicted for violating 18 U.S.C. § 2383. (We flagged this statute in our February 3 post on incitement.) § 2383 provides:  

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. (emphasis added)

We expect that, by now, readers of this blog are well familiar (if not exhausted) with our arguments concerning the phrase "office . . . under the United States." Prior to 2017, our position about the meaning of this phrase was not widely known, and it had few real-world implications. Yet, we continue to be amused how often Trump-related issues have implicated the phrase "office . . . under the United States." This issue has arisen in debates over the Foreign Emolument Clause, the Impeachment Disqualification Clause, Section 3 of the Fourteenth Amendment, and potentially a criminal prosecution under § 2383. ...

We've written that the phrase "office . . . under the United States" refers to appointed positions in the Executive and Judicial Branches, and also includes appointed positions in the Legislative Branch. This phrase does not extend to elected federal positions, i.e., the President, Vice President, and members of Congress. 

The phrase "office . . . under the United States" is used in several clauses in the Constitution. This language also appears throughout the body of federal statutes, including statutes passed by the First and other early congresses. In our experience, most people simply assume that this language extends to all positions in the federal government—appointed and elected. But that assumption is particularly problematic in the context of statutory disqualification. The Supreme Court and other federal courts have held that congressional statutes cannot add additional qualifications for elected federal positions. Of course, Congress can add statutory qualifications for appointed positions. In other words, Congress can add statutory qualifications to the positions it creates (i.e., appointed federal positions), but Congress cannot add qualifications to positions created by the Constitution (i.e., elected federal positions).

Is a person convicted under § 2383 disqualified from holding an elected federal position? Under settled modern Supreme Court and other federal court precedent, this statute should not be read in that fashion. Indeed, we also think that reading is correct as a matter of original public meaning—at least with respect to the Constitution of 1788. Later in this post, we will address the effect of Section 3 and Section 5 of the Fourteenth Amendment.