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32 posts from February 2021


Twelfth Annual Originalism Works-in-Progress Conference at the University of San Diego
Michael Ramsey

Friday and Saturday, we will host (virtually) the Twelfth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego Law School.  Here is the schedule (all times are Pacific Time):

Friday, Feb. 19

9:30 – 10:00    Informal Meeting Time and East Lunch (in break out rooms).           

10:00 -10:05    Dean’s Introduction

                        Dean Robert Schapiro (USD)

10:05 – 10:20 Opening Remarks

Michael Rappaport (USD)

10:20 – 11:35  First Paper: Richard Fallon (Harvard)                       

                        The Chimerical Concept of Original Public Meaning

                        Commentator: Gary Lawson (BU)

                        Moderator: Tom Colby (George Washington)

11:35 – 12:00  West Lunch (with informal chat in break out rooms).  

12:00 – 1:15    Second Paper: Nicholas Parrillo (Yale)

                        A Critical Assessment of the Originalist Case Against Administrative Regulatory                          Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s

                        Commentator: Jennifer Mascott (Scalia)

                        Moderator: Mila Sohoni (USD)

1:15 – 1:30      Break (with informal chat in break out rooms).

1:30 – 2:45      Third Paper: Lawrence Solum (Virginia) & Max Crema (Georgetown)

                        The Original Meaning Of “Due Process Of Law” In The Fifth Amendment

                        Commentator: Tara Leigh Grove (Alabama)

                        Moderator: Larry Alexander (USD)

2:45 – 4:00      Social Hour (with informal chat in break out rooms).

Saturday, Feb. 20

8:15 – 8:45      Informal Meeting Time (in break out rooms).

8:45 – 10:00    Fourth Paper: Ernest Young (Duke)

                        Dying Constitutionalism And The Lost Years Of The Fourteenth Amendment

                        Commentator: Jamal Greene (Columbia)

                        Moderator: Steve Smith (USD)

10:00 – 10:30  East Lunch (with informal chat in break out rooms).

10:30 – 11:45  Fifth Paper: Jason Mazzone (Illinois) & Cem Tecimer (Harvard)

                        Originalism And Inter-Constitutional Interpretation

                        Commentator: Jack Balkin (Yale) 

                        Moderator: Shaakirrah Sanders (Idaho)

11:45 – 12:00  West Lunch (with informal chat in break out rooms).

12:00 – 1:15    Sixth Paper: Richard Epstein (NYU)

                        Patent Originalism

                        Commentator: Christina Mulligan (Brooklyn)

                        Moderator: Maimon Schwarzschild  (USD)

1:15 – 1:30      Break (with informal chat in break out rooms).

1:30 – 2:45      Seventh Paper: Evan Bernick (Georgetown)

                        Antisubjugation And The Equal Protection Of The Laws

                        Commentator: Michael McConnell (Stanford)

                        Moderator: Laurie Claus (USD)

2:45 – 2:50      Concluding Remarks

                        Michael Rappaport (USD) 


Elias Quinn: W(h)ither Judgment
Michael Ramsey

Elias Leake Quinn (Independent) has posted W(h)ither Judgment (Cardozo Law Review de novo, Vol. 42, No. 162, 2021) (25 pages) on SSRN.  Here is the abstract:

Meaning is messy. Since our notions of justice often demand clarity from the law, some jurists have set themselves to the task of cleaning it up. Textualists home in on the written word as the key to unlocking clarity. But the textualist’s endeavor is less the crusade of a purist than it is the tinkering of a technologist. Textualists labor in hopes they might develop algorithms that would allow them to escape the queasy uncertainty that comes with the exercise of judgment. If only they could consult the right dictionary or apply the right rule—or even build the right search engine—they could, the theory goes, ensure the certain and consistent construction of legal texts, word by word.

That project is founded on an incomplete view of language and meaning. Seventy-five years ago, J.L. Austin recognized that sometimes people do things rather than simply describe things with words—they sanctify marriages, settle scores, swear oaths, level threats. Words don’t just describe the world; they shape it. With that simple insight, Austin complicated any effort to deduce a statute’s meaning from the words on the page. And when Austin then failed to parse the ‘performative’ utterances from the ‘descriptive’ ones—recognizing that every meaningful statement is indelibly both—he put the lie to what’s become textualists’ fundamental assumption: that meaning is determined exclusively by the words’ descriptive content, and that context, authority, audience, and circumstance play no role in answering questions of interpretation.

But the pure textualists’ project is not only misguided, it is self-defeating. In pressing for a detached and mechanized approach to resolving quandaries of meaning, the textualists’ project rests on the principle that judges are not to be trusted, and that judgment should be avoided. But trust is the currency of the judiciary, and the erosion of trust imperils the rule of law.

I don't think "textualists’ fundamental assumption" is "that meaning is determined exclusively by the words’ descriptive content, and that context, authority, audience, and circumstance play no role in answering questions of interpretation."  Quite the contrary  Textualists' fundamental assumption is that the touchstone of the interpretive inquiry is the meaning of the words.  That does not exclude -- indeed, it invites -- attention to "context, authority, audience, and circumstance" (but only in the service of determining the meaning of the words, and not for other purposes.  (My discussion of textualism in the context of constitutional interpretation is at the beginning of this article.)

Also I don't think textualists categorically deny the need for judgment.  They categorically deny the need for policy judgment in interpreting texts, but they don't deny (or at least shouldn't deny) that interpreting texts requires judgment about the likely meaning of words.

And what imperils the rule of law is judges not following the text, and instead following their policy intuitions.

But aside from that, I liked the play.

UPDATE:  At Legal Theory Blog, Larry Solum adds: 

The author seems to be unaware of the extensive engagement of contemporary textualist theory with Austin (speech act theory) and with pragmatics.  There is a footnote acknowledging Lee and Mouritsen's discussion in ordinary meaning, but that is the only use of the word "pragmatics" in the essay.


Matthew Franck on Richard Brookhiser on John Marshall
Michael Ramsey

At Law & Liberty, Matthew Franck: John Marshall: Judge or Statesman? (reviewing the film version of Richard Brookhiser's John Marshall: The Man Who Made the Supreme Court).  From the introduction:

Over the last quarter-century, National Review senior editor Richard Brookhiser has earned the sobriquet “historian” for a string of accessible books, chiefly biographies of American founders and statesmen, beginning with George Washington and continuing with Alexander Hamilton, four generations of the Adams family, Gouverneur Morris, James Madison, and Abraham Lincoln. His most recent biography, of John Marshall, came out a couple of years ago and was reviewed here by Marc DeGirolami. (Brookhiser also discussed it with Richard Reinsch on the LibertyLawTalk podcast.)

As with his previous works on Washington and Hamilton, which resulted in biographical films broadcast by PBS, Brookhiser’s Marshall bio is now the basis of a fine documentary, this time available via Amazon, bearing the same title as his book, John Marshall: The Man Who Made the Supreme Court. As before, Brookhiser himself is the film’s narrator, guide to various sights, and interviewer. And he has assembled an impressive group of interviewees—historians, legal scholars, even a U.S. senator (Missouri’s Josh Hawley) and two Supreme Court justices (Justice Samuel Alito and Chief Justice John Roberts).

Clocking in at two and a half hours—a good hour longer than Brookhiser’s Washington film and a half-hour longer than his Hamilton—the Marshall documentary might have benefited from a little trimming. (Did we really need a visit to a boxing gym as a “metaphor” for the “contact sport” of politics in the founding era?) But as our genial host takes us to John Marshall’s boyhood home in Fauquier County, Virginia—then truly the western frontier—as well as to Valley Forge, Williamsburg, Richmond, Philadelphia, and Washington, with junkets for atmosphere by horse-drawn carriage and sailing ship, we get a good impression of the American republic’s tenuous beginnings, and of the causes of Marshall’s devotion to perpetuating our constitutional order.

And from later on:

The thread running through the remarks of some of Brookhiser’s commentators is succinctly stated by Yale’s Bruce Ackerman: that John Marshall’s jurisprudence was marked by a kind of “political statecraft.” Again I would sound an unfashionable note of caution about such characterizations—unfashionable because it rests on an old-school presupposition that there are right answers to legal questions. First it is incumbent on the historian or legal scholar to show where a judge has departed from the law, giving the questions in a case the wrong answers. Then he may reasonably consider what moved the judge to behave so—whether it was simple error, or culpable distortion, and, if the latter, what political or personal agenda he was serving in place of the law.

Another example of this cart-before-horse analysis arises when the documentary presents the case of The Antelope, a complicated case concerning the international slave trade. Here Paul Finkelman has his innings as a commentator, insisting that Marshall’s personal standing as a slaveholder drove his decision to recognize the legitimacy of the trade under international law. To his credit, Finkelman attempts a legal critique of the ruling in the case, but for the most part he and other commentators deplore Marshall’s decision on moral grounds, insinuating that if he were really a friend of human freedom and dignity he would have found a way to free all the unfortunate captives discovered aboard the Antelope. The consensus view seems to be that this was a culpable failure of the high statecraft of which Marshall was capable on other occasions. But if a solid case can be made that the chief justice was right about the strictures of international law in 1825—and it can be—then what we have is a correctly decided case with tragic results. This is not an unfamiliar phenomenon in the law.

In short, too often Brookhiser’s commentators go to the “statecraft” explanation of Marshall’s behavior without giving the viewer the benefit of a persuasive legal critique of his work. But if the law, viewed from a perspective internal to it, supplies its own reasons for action, there is where the commentator’s work should begin. And it may satisfactorily end there too, if the conclusion is that the law itself supplied the ground of a decision. Somehow Marshall’s acknowledged greatness does not seem truly great unless his admirers attribute large dimensions of political statesmanship to him. Even Chief Justice Roberts—perhaps seeing a bit of Marshall in himself, or himself in Marshall—stumbles into this when he says that his predecessor’s overriding concern was “protecting the Court as an institution.” No doubt this did concern Marshall. But we have no solid reasons to believe that such a consideration outweighed getting the law right. And his lifelong commitment to getting it right was the real cause of his greatness.


Senator McConnell on Impeachment of Former Officers
Michael Ramsey

In the Wall Street Journal, Senator Mitch McConnell: Acquittal Vindicated the Constitution, Not Trump.  This is the best short explanation I've seen anywhere of the unconstitutionality of trying former officers:

Everyone agrees that “treason, bribery, or other high crimes and misdemeanors” [in Article II, Section 4] exhaust the valid grounds for conviction. It follows that the list of persons in that sentence—“the president, vice president, and all civil officers”—likewise exhausts its valid subjects.

If that list of current officers is not exhaustive, there is no textual limit. The House’s “sole power of impeachment” and the Senate’s “sole power to try all impeachments” would constitute an unlimited circular logic with no stopping point at former officers. Any private citizen could be disqualified. This is why one House manager had to argue the Senate possesses “absolute, unqualified” jurisdiction. But nobody really accepts that.

I side with the early constitutional scholar Justice Joseph Story. He observed that while disqualification is optional, removal is mandatory on conviction. The Constitution presupposes that anyone convicted by the Senate must have an office from which to be removed. This doesn’t mean leaving office provides immunity from accountability. Former officials are “still liable to be tried and punished in the ordinary tribunals of justice.” Criminal law and civil litigation ensure there is no so-called January exemption.

Of course, there are counterarguments.  But no counterargument I've seen wrestles with the fundamental point that either Article II, Section 4 is a limit -- or it isn't.  It can't be a limit as to some things and not others.

As an aside, Senator McConnell does not even mention the argument that impeaching and trying a private citizen would amount to an unconstitutional bill of attainder.  The House Managers' Reply Memorandum (discussed here) also did not mention that argument. Yet it was actually the lead argument in the Defense Memorandum regarding the unconstitutionality of the trial.  As the memorandum argued (p. 15, Section A.1(a)): 

An impeachment trial of Mr.Trump held before the Senate would be nothing more nor less than the trial of a private citizen by a legislative body.  An impeachment trial by the Senate of a private citizen violates Article I, Section 9 of the U.S.Constitution, which states that “[n]o bill of attainder . . . shall be passed.”

I have no idea why the defense lawyers thought this was a winning argument, and it seems wrong on multiple levels. For one, impeachment and attainder were separate legal processes in English law.  Attainder was a legislative act; impeachment was in the nature of a judicial proceeding.  The question in the Trump impeachment was whether a former officer could be impeached and tried.  No one doubted that this could happen under eighteenth-century English law, nor that when it did happen it was called an impeachment, not a bill of attainder.  The issue therefore was whether the U.S. Constitution carried this idea of impeachment over from English law, or limited it (in Article II, Section 4).  The Constitution's separate limit on bills of attainder is irrelevant because, again, everyone understood these to be two separate processes.  Indeed, the text confirms this: when the Senate convicts after an impeachment, it is surely has not "passed" a "bill."  Moreover, the defense memorandum cites no founding-era authority (or any modern scholarly authority) supporting its view of bills of attainder.  The entire argument is misconceived and was rightly ignored by both the House Managers and Senator McConnell.  And at the same time, the defense memorandum failed to cleanly make the textual argument Senator McConnell provides in his op-ed, which I would have expected to be its opening argument.  If Senator McConnell is an indication, the defense may have prevailed in spite of its arguments, not because of them.


In response to (a portion of) Andrew Hyman's recent post
David Weisberg

Andrew Hyman has commented on a recent post by Josh Blackman and Seth Barrett Tillman which provides, I think, strong historical evidence that an elective federal office—membership in the House or the Senate, or the presidency or vice-presidency—is not an “Office of honor, Trust or Profit under the United States” within the meaning of the Impeachment Disqualification Clause.  (Art. I, Sec. 3, Cl. 7.)  If that is correct, then disqualification would not bar the convicted party from later serving as one of those elected federal officers.

In his comment, Mr. Hyman refers to one of my own previous posts, in which I made a ‘structural’ argument that reaches the same conclusion suggested by the historical research done by Blackman and Tillman.  But I don’t think it is correct to say, as Mr. Hyman does, that I “argued” that the Presidential Eligibility Clause “does list some qualifications” for President.  No argument would be needed for that.  My argument was and is that the original unamended Constitution sets forth specific, explicit eligibility requirements for serving in three elective federal offices.  A Representative must be at least twenty-five years old, must have been a citizen for at least seven years, and must, when elected, be an inhabitant of the State in which he shall be chosen.  (Art. I, Sec. 2, Cl. 2.)  A Senator must be at least thirty years old, must have been a citizen for at least nine years, and must, when elected, be an inhabitant of the State for which he shall be chosen.  (Art. I, Sec. 3, Cl. 3.)   A President ust be a natural born citizen, must be at least thirty-five years old, and must have been a resident within the U.S. for at least fourteen years.  (Art. II, Sec. 1, Cl. 5.)  (Eligibility requirements for the presidency, which had formerly only implicitly applied to the vice-presidency, were explicitly applied to the vice-presidency by the 12th Amendment.)

Thus, there are very specific requirements for each elective federal office, and they all relate either to a person’s citizenship, or age, or length of habitation in the State in which he or she is elected (for members of the House and Senate) or residency in the U.S. (for President).  But, if the Impeachment Disqualification Clause applies to these offices, it turns out that the explicit eligibility requirements for those three federal elective offices are all importantly incomplete (and were all importantly incomplete at the time the Constitution was ratified), because for each of those elective offices there would be the additional requirement that the person not have been disqualified by the Senate.

The ancient canon of interpretation—expressio unius est exclusio alterius—tells us that the expression of one or more things in a particular class implies the exclusion of other things in that class that are not expressly mentioned.  This is common sense.  Here, in three distinct and separate provisions, the Constitution prescribes eligibility requirements for three different federal elective offices, and in none of those provisions is it stated that, to be eligible, the person must not have been subject to "disqualification" by the Senate.  The most reasonable conclusion is that a federal elective office is not within the ambit of the phrase “any Office of honor, Trust or Profit under the United States” in the Impeachment Disqualification Clause (which is the conclusion supported by Blackman and Tillman's historical research).

It is instructive to contrast the very specific eligibility requirements for service in the House or Senate, and the presidency, with the complete absence of any eligibility requirements for all the officers the President, with the advice and consent of the Senate pursuant to Article II, Section 2, Clause 2, may appoint: “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law[.]” 

There are no stated eligibility requirements at all--none--for those officers. Therefore, the Impeachment Disqualification Clause could be applied to bar a particular person from holding any one of those offices, without any inconsistency or conflict with specific eligibility requirements that make no reference to such disqualification.  The three federal elective offices are very different; each one has specific eligibility requirements that make no reference whatsoever to Senate disqualification.  Importing or discovering unexpressed requirements that persons not have been disqualified by the Senate conflicts with the very specific lists of requirements actually expressed in the Constitution.  

ANDREW HYMAN ADDS: As I mentioned previously, the 22nd Amendment says that a president is ineligible if he has already served two terms as president.  That specific eligibility requirement joins the other eligibility requirements enumerated at locations within the original unamended Constitution, and the expressio unius canon continues to apply to all of them as a whole, so that neither Congress nor the individual states can impose further presidential eligibility requirements.  I am not hearing that David Weisberg disagrees with any of that.  In my view, the presidential eligibility requirements in the Constitution do not have to be listed together in one sentence, but can be enumerated in scattered fashion, just as the 22nd Amendment is located separately from Article II, Section 1 (which requires birthright citizenship), and just as both of them are located separately from the requirement in Article I, Section 3 that presidential candidates not have been disqualified by the Senate.  In this eligibility situation, we have an enumeration of qualifications, but the enumeration is somewhat scattered, just like the enumeration of rights in the Constitution is somewhat scattered (I agree with Ilya Shapiro on that point and with many others who have made this same point about the enumeration of rights being scattered).  In any event, the expressio unius canon does not require any enumeration at all, much less a one-sentence or one-paragraph consecutive list; Justice Scalia gave the example of a car dealer who promises low financing "for purchasers with good credit," which of course implies by negative implication that low financing is unavailable for purchasers with bad credit. 

FURTHER NOTE FROM ANDREW HYMAN:  On further reflection, please disregard my comment above, and instead refer to a newer blog post of mine that deals in greater depth with the expressio unius canon.


Originalism in the House Managers' Brief
Michael Ramsey

In the Reply Memorandum filed by the House Managers in the Trump impeachment trial, on the subject of trying ex-Presidents, the Managers say (p. 15):

The “originalist” case for the Senate’s jurisdiction here could hardly be stronger.

Again, originalism is (a part of) our law.  (Though in scare quotes, apparently.)  I don't think a document filed in this context 30 years ago would have invoked originalism by name.  Of course, the memorandum goes on to discuss other types of constitutional evidence, particularly precedent, but it shows that originalism has a "seat at the table" in a way it didn't in earlier times.

I should probably just declare victory there, but while on the subject, how strong is their originalist case?  I would say they overstate quite a bit in saying it "could hardly be stronger."  First, here's their originalist argument (leaving aside arguments based on text) (footnotes omitted): 

President Trump does not dispute that the Framers looked to English practice as a model for the federal impeachment power. And President Trump concedes that, in the English system, officials could be impeached and disqualified after leaving  office. In fact, as we described in our opening brief (at 51), Warren Hastings, a former official, faced impeachment charges in England even as the Framers gathered in Philadelphia to draft our Constitution—and the Framers cited his case as one in which impeachment was appropriate. President Trump is therefore left to make the implausible argument that the Framers intended to depart from this settled English practice without saying so.

President Trump similarly concedes that numerous state constitutions during the founding era provided for the impeachment of former officials. None prohibited such impeachments. Indeed, in some states, only former officials could be impeached, which confirms that the Framers surely understood that the impeachment power could also encompass former officials. Had they intended to depart from that understanding, they would have said so.

Precedent dating back more than 200 years makes the Senate’s jurisdiction here even clearer... After leaving office, President John Quincy Adams recognized that he was “amenable to impeachment by [the] House for everything I did during the time I held any public office.” And the Senate has several times affirmed that it has the power to try, convict, and disqualify officials after they leave office. When Senator Blount was expelled from the Senate after being impeached in 1798, he expressly disavowed at his Senate trial the radical claim (made here by President Trump) that former officials were categorically exempt from trial.

I agree these are plausible originalist arguments.  But they aren't airtight.  As to English practice, it's true that it included trials of former officials (as in the Hastings episode), and it's true that the Framers looked to the English practice to some extent.  But the Framers also rejected English practice to some extent (for example, by limiting the types of punishments that could be imposed).  Nonetheless, it's surely relevant that the Framers knew about the English practice.  Indeed, I think that is probably the best originalist evidence on this side.

The other points seem weaker.  The fact that some state constitutions expressly allowed impeachment and trial of former officials seems inconclusive at best.  Arguably it cuts the other way.  It might suggest that if former officials are to be subject to impeachment, that needs to be stated expressly.  The originalist case would be stronger if practice under state constitutions without an express provision allowed impeachment of former officials.  But I'm not aware of such practice, and the Managers don't claim there was any.

The Quincy Adams quote indicates that he thought former officials could be impeached.  But Adams was not a Framer (nor was his father, for that matter), and the quote is from long after ratification.  Also, it's a single isolated quote, which wouldn't be decisive originalist evidence even if closer to ratification. The originalist case would be stronger if quotes from nearer ratification (especially from the drafting or ratifying debates) indicated a general consensus around impeachment and trial of former officials.  The Managers don't cite anything like this, and as far as I know it doesn't exist.  My impression is that in the Convention and in The Federalist, the Framers talked about impeachment only as it applied to current officers.  That doesn't prove it couldn't apply to former officers, but it weakens the argument somewhat.

The Managers also acknowledge that Story's Commentaries (from around the same time as the Adams quote) seem to indicate that impeachment and trial are limited to current officers.  They say Story is "equivocal," and that seems right -- here is the Story quote (Section 801 of the Commentaries): 

[I]t would seem to follow [from Article II, Section 4], that the senate, on the conviction, were bound, in all cases, to enter a judgment of removal from office, though it has a discretion, as to inflicting the punishment of disqualification. If, then, there must be a judgment of removal from office, it would seem to follow, that the constitution contemplated, that the party was still in office at the time of the impeachment. If he was not, his offence was still liable to be tried and punished in the ordinary tribunals of justice. And it might be argued with some force, that it would be a vain exercise of authority to try a delinquent for an impeachable offence, when the most important object, for which the remedy was given, was no longer necessary, or attainable. And although a judgment of disqualification might still be pronounced, the language of the constitution may create some doubt, whether it can be pronounced without being coupled with a removal from office.

I'd say this indicates Story thought it was an open question, though he leaned toward thinking former officials could not be impeached or tried.  At least, it indicates that Quincy Adams wan't stating a consensus position.

Finally, Blount's main argument was that Senators couldn't be impeached and tried because they weren't covered by Article II, Section 4.  (It appears the Senate decided not to proceed with the trial on this ground).  But this argument cuts against the Managers' interpretation.  Their position is that Article II, Section 4 

“simply establishes what is known in criminal law as a ‘mandatory minimum’ punishment: If an incumbent officeholder is convicted by a two-thirds vote of the Senate, he is removed from office as a matter of law." (p. 13, quoting Charles Cooper).

However, Blount's argument that Senators can't be impeached relies on Article II, Section 4 being a limit on who can be tried, not just a "mandatory minimum."  Thus it indirectly supports Trump's argument that Article II, Section 4 also excludes former officers from being tried.

In sum, originalist evidence in support of the House position could be a lot stronger.  As it is, I think it's largely inconclusive.  (I'm persuaded by the textual argument, as discussed before, and I don't find the non-textual originalist evidence enough to overcome it.)

[Ed.: yes, I know I said no more discussion of the impeaching-former-Presidents argument, but at least I held off for a week or two.]


John McGinnis on Mary Sarah Bilder on Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: Why Mary Sarah Bilder Gets Originalism Wrong.  From the introduction:

As originalism has gained prominence, it has become a target for academic historians. They often accuse lawyers of a shallow view of history, pejoratively termed law office history. They complain of lawyers’ overreliance on linguistic crutches like dictionaries, and their ignorance of the social and political context of the constitutional text.

In my view, originalists and historians should not face fundamental conflicts in part because they are largely interested in different questions. Originalists are focused on the legal meaning of texts, and the relevant evidence for that meaning is set by the legal rules of interpretation at the time of enactment. Historians are more interested in much broader questions, like the causes of historical events and the motivations of those who contributed to them. It is not so different from the division of labor if it were applied to contemporary traffic accidents. Lawyers would focus on the narrow question of who is liable for specific accidents. Historians (and other social scientists) would consider the causes of the rise and fall of traffic accidents and their consequences for society.

That is not to say there is no overlap between the concerns of some legal historians and originalist lawyers. Legal historians can identify context which may be relevant to determining meaning under the rules of interpretation at the time or establishing what those rules were. They can also bring to light useful sources through archival research. Unfortunately, such fruitful collaboration is rare. And in my view, the fault is largely with historians because they often write about originalism in a tendentious way that has three principal defects. First, they themselves do not provide the relevant legal context of the evidence they use in making claims about legal meaning. Second, they make a caricature of originalist methodology. Third, they rely on arguments from professional authority.

Sadly, a recent short essay by Mary Sarah Bilder, a distinguished legal historian at Boston College, exemplifies all three faults. The essay meditates on an epigram used in an essay by the late great historian Bernard Bailyn. Surprisingly, Bilder does not directly quote his epigram in so many words, but it appears to have been a comment from James Madison where Madison stated, according to Bilder, that the Constitution was just “a draft of a plan” until “life and vitality were breathed into it.” These snippets might seem at first glance to confirm, as Bilder no doubt means to suggest, that Madison did not believe that the meaning of the Constitution was settled at enactment and that its meaning properly evolves based on the subsequent views and actions of the American people as they breathed life into it. ...

Despite its title, the post does not really undertake much speculation about why Professor Bilder gets originalism wrong (as opposed to how she gets it wrong).  Without personalizing any such speculation, I suspect that many historians get originalism wrong because  (a) they have an intuitive dislike for it and so are overly anxious to show its faults, and (b) they are speaking within a peer community that shares this common intuitive dislike, so they don't expect or encounter critical many readers.  As a result, they don't bring to the discussion the care, rigor and nuance that characterizes their historical work.


A President Who is Impeached and Removed Can be Disqualified From His Own Office as Well as Others
Andrew Hyman

John Vlahoplus has responded on this blog to the invitation from Seth Barrett Tillman and Josh Blackman in which they welcomed responses to their conclusion that the presidency is not an “Office . . . under the United States” because it is an elected rather than appointed position.  Vlahoplus cites considerable originalist evidence that Tillman and Blackman are mistaken, though Vlahoplus indicates that they "may be correct despite the wealth of contrary public usage" in the 1780s.  I agree with Vlahoplus that the originalist evidence (from both the 1780s and the 1860s) weighs strongly against the idea that the President is not an officer under the United States (and "of" the United States).  
As I understand the thesis of Professors Blackman and Tillman, an incumbent President of the United States is free to simultaneously be a United States Senator or Representative; is free to accept presents, emoluments, and offices from foreign nations without the consent of Congress; and cannot be disqualified from returning to the presidency even after being impeached and removed. To the contrary, in a previous blog post, I cited some of the many times that the Constitution refers to the presidential "office," and addressed some of the textual evidence that Blackman and Tillman cite including the Appointments Clause, the Commissions Clause, the Impeachment and Removal Clause, and the Oaths Clause.  Previously, I also pointed out why a Treasury Department Report by Alexander Hamilton in 1793 does not help their thesis either.
In their most recent blog post (linked above), Blackman and Tillman cite the following "new" pre-ratification evidence to support their thesis: Federalist No. 77, where Hamilton described the consequences of impeachment and disqualification by saying, "[T]he President [is] at all times liable to impeachment, trial, dismission from office, incapacity to serve in any other...." Since Hamilton used the word "other," the Blackman-Tillman inference is that Hamilton was suggesting the President cannot be disqualified from the presidency itself.  This inference is mistaken, though, in view of Federalist No. 79, which says that federal judges "are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other." This statement about judges is parallel to what Hamilton had already said about the President, and I doubt that many people believe federal judges cannot be disqualified from the same office from which they were removed (I also note that the words "any other" are very broad and therefore naturally suggest that judges who are impeached and removed can also be disqualified from the presidency despite the contrary thesis of Blackman and Tillman). 
It’s true, as David Weisberg has argued on this blog, that the Presidential Eligibility Clause does list some qualifications: natural born citizen,  older than 35, residency of 14 years.  But there are other qualifications too, such as not already having served two terms.  It’s the sum total of qualifications in the Constitution that rule out additional ones, whereas the Presidential Eligibility Clause alone does not necessarily rule out further qualifications.
The thesis of Blackman and Tillman runs counter to plain English, which is fine, but requires substantial originalist evidence that a technical meaning was intended.  As John Vlahoplus points out, the originalist evidence goes the other way.  So does the evidence of later history; how many incumbent presidents have been voting members in the U.S. Congress?
I will just wrap up here with a few miscellaneous quotes.  In 1788, Virginia politician Alexander White gave his public opinion about emoluments regarding the President:  "The president cannot procure in addition to his salary....How then can he propose to promote his own honor and imolument [sic], but by acting such a part during his presidency, as will induce the people over whom he presides to reelect him?"  In Federalist No. 76, Hamilton strongly implied that presidents may not simultaneously serve as voting members of Congress: "The Constitution has provided some important guards against the danger of executive influence upon the legislative body. It declares that '...no person holding any office under the United States shall be a member of either house during his continuance in office.'" Finally, long before the Blount impeachment case, James Monroe in 1788 implied that presidents are not to be considered representatives of the people: "I conceive that the Senators are not impeachable....The Senators are representatives of the people; and by no construction can be considered as civil officers of the State....To impeach either the members of Senate or House of Representatives, would, be to impeach the representatives of the people, that is the people themselves, which is an absurdity."  This makes sense because it was then understood that Presidents would not be elected primarily to do the bidding of the electorate, but rather to execute the laws.

Virginia Originalism Symposium Tomorrow
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, the University of Virginia Law School Federalist Society is hosting a symposium tomorrow titled Originalism under Fire: How Originalism Has Responded to Recent Challenges -- and What's Next.  Here is the program:

Textualism After Bostock

Bostock v. Clayton County was a landmark decision in more ways than one. Of course, the holding was groundbreaking. But so too was the fact that all three Bostock opinions rooted themselves in textualist principles. How much does the Bostock split matter? Should we expect more or fewer divisions like those in Bostock? And how will the Court's changes in personnel affect this divide?

Prof. Josh Blackman
South Texas College of Law
Prof. Tara Leigh Grove
University of Alabama School of Law
Prof. Michael Rappaport
University of San Diego School of Law

Originalism's Conservative Foes

The conservative legal movement has championed originalism for decades. But there are growing signs of dissension — some argue that originalism has outlived its utility and should be abandoned. How should originalists respond to these challenges from the right?

Josh Hammer
Opinion Editor, Newsweek
Prof. Stephen Sachs
Duke University School of Law
Prof. John Yoo
UC Berkeley School of Law
The Honorable Gregory Maggs
Judge, United States Court of Appeals for the Armed Forces (moderator)

Originalism, Institutionalism, and the Thomas Court

With the Court's conservative wing ascendent, what should originalists expect in the coming years? Will one or more justices try to position themselves as the intellectual heir to Justice Scalia, or will different justices establish their own brands of originalism? What comes next in the judicial wars, and how will President Biden shape the judiciary?

John Malcolm
Director, Meese Center for Legal and Judicial Studies, The Heritage Foundation
Prof. Jennifer Mascott
Antonin Scalia Law School
The Honorable Beth A. Williams
Former Assistant Attorney General, US Department of Justice
The Honorable Neomi Rao
Circuit Judge, United States Court of Appeals for the District of Columbia Circuit (moderator)

Originalism's Public Meaning

Supreme Court confirmation hearings tend to shine a bright spotlight on originalism. During Justice Barrett's hearings, many prominent figures — from politicians to Hollywood celebrities — opined on the nature and merits of originalism. But how does the general public view originalism? And how much should originalists be concerned with the public's conception of what originalism is?

Elizabeth Slattery
Senior Legal Fellow, Pacific Legal Foundation
Prof. Kurt Lash
University of Richmond School of Law
David Lat
Founding Editor, Above the Law
Evan Bernick
Visiting Professor of Law, Georgetown University Law Center (moderator)


Office Under the United States: A Response to Seth Barrett Tillman and Josh Blackman
John Vlahoplus

Seth Barrett Tillman and Josh Blackman have invited responses to their conclusion that the presidency is not an “Office . . . under the United States” because it is an elected rather than appointed position (at the Volokh Conspiracy, here).  I critiqued the view that the conclusion represents the “original public meaning” of the constitutional text in Evaluating Originalism: Commerce and Emoluments, in the St. John’s Law Review (here).  An excerpt follows (footnotes omitted):

However, other period uses included elected offices.  The Continental Congress entertained a motion in 1785 to disqualify any member of Congress “from being elected by the United States in Congress assembled, to any office of trust or profit, under the said states.”  And George Mason considered the president to be subject to the Foreign Emoluments Clause.

Tillman acknowledges that state law usage of “office under” “seems akin to the Constitution’s,” and that usage included election to offices under a state.  St. George Tucker referred to both election to “any office” and election to “any office under the state” in his famous 1803 American edition of Blackstone’s Commentaries.  In addition, the 1819 Maine Constitution referred to “every person elected . . . to any . . . office under this State.”

Popular usage also included elected offices.  Accounts of the Connecticut charter published by order of Congress referred to both persons “elected to any office in the government” and persons “elected to any office under Government.”  The Pennsylvania governorship was an elected position, and a 1789 news article described a proposal to forbid the governor to “hold any other office under this State.”  A 1790 article referred to the governor as holding an office under the state constitution, and in the same year James Wilson, a founder and sitting United States Supreme Court Justice, described the governor as holding an office under Pennsylvania.  A 1793 New York article refers even more generally to persons “elected to any office under the government of the state or of the United States.”  In addition, a 1797 New York newspaper article described an elected senator as holding “an important office under the government of this state.”

Other uses imply that elected executive offices are offices under state and federal governments.  Maryland’s 1776 Constitution provided that no person

holding any office under the united states, or any of them, or a minister or preacher of the gospel of any denomination, or any person employed in the regular land service, or marine, of this or the united states, shall have a seat in the general assembly, or the council of this state.

Given the breadth of the disqualifications, it would be fanciful to interpret “office under the united states, or any of them” to allow holders of elected executive offices of other domestic governments to sit in the Maryland general assembly or council.  Moreover, usage in the First Congress suggests that elected executive offices are offices for purposes of every constitutional provision.  Rep. Sedgwick described the vice president as “an officer by the constitution,” and James Madison advised that “[w]e are to consider his appointment as part of the constitution.” 

Madison’s use of “appointment” for the elected position of vice president counsels against drawing fine distinctions between elected and appointed offices in public meaning constitutional interpretation where the relevant provision does not include either word. In 1789, the New York legislature referred to George Washington’s “election to” and “appointment to” the presidency in the same sentence.  The governor and council of North Carolina wrote to President Washington that his “appointment to the first office in the union” would no doubt accelerate the state’s ratification of the Constitution.  And an 1801 New York article defended officeholders of the Clinton family against charges of oligarchy by pointing out that they held elected offices under the state constitution.

Finally, Tillman provides no evidence that anyone in “the American public” believed that “office under” was a term of art for whose meaning they should defer to lawyers.  He does not cite a single public use in which anyone—Founder, drafter, ratifier or other—links the constitutional term and the British legal term.  This contrasts with the Constitution’s term “natural born,” for example, which has numerous founding-era uses linked to British uses of the term.

How does Tillman conclude that “office under” incorporates the British term of art despite significant contrary public usage and the absence of public usage linking them? This article suggests that he exercises legal judgment to determine founding-era doctrine—his originalism, like Sachs’s, “is just ordinary lawyer’s work.”

Madison’s comparison of the vice president and state lieutenant governors is also instructive.  When the First Congress debated the pay of vice presidents in 1789, some argued that they should be paid like lieutenant governors, some of whom received pay only upon attendance and others no pay at all.  Madison objected that that would be unfair.  The vice president would have to reside far from home to be available to replace the president if needed, whereas “[n]o officer under a State Government can be so far removed as to make it inconvenient to be called upon when his services are required; so that, if he serve without a salary, it may be he can reside at home, and pursue his domestic business . . .” (here).  All lieutenant governors were elected at the time.  In Madison’s home state of Virginia, for example, the Council of State elected the lieutenant governor.  And Madison described the lieutenant governor as an officer under the state government. 

But we don’t interpret the Constitution by tallying usage by Founders or newspapers any more than tallying the intentions of Founders or ratifiers.  We interpret it by applying multiple modes of legal analysis, including normative ones, as Tillman and Blackman do in their post.  They make a strong case for their conclusion, which may be correct despite the wealth of contrary public usage.