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35 posts from April 2021


Scott Boykin: Original-Intent Originalism
Michael Ramsey

Scott Boykin (Georgia Gwinnett College, Political Science) has posted Original-Intent Originalism: A Reformulation and Defense (Washburn Law Journal, Vol. 60, No. 2, 2021) (43 pages) on SSRN.  Here is the abstract:

Originalists emphasize constitutional text as a means of interpreting and applying provisions of the Constitution to concrete issues. In the 1970s and 1980s, the first wave of originalists considered the intentions of the Framers as controlling for interpretation of constitutional text. Over time—and in part due to the critique of intentionalism that suggests we lack a reliable means of assessing the subjective intentions of all of those who adopted a particular constitutional provision—the focus of originalists shifted to the original public meaning of constitutional text. For reasons detailed below, I maintain that a focus on text, while critically important to constitutional interpretation, is inadequate by itself for faithfully interpreting the Constitution, particularly where its open-textured provisions, which are most often the subject of adjudication, are concerned. By intent, originalists mean what the Framers and Ratifiers sought to do by means of the Constitution’s provisions. It is the actions and results the Framers and Ratifiers sought to achieve that constitute their intent. It is insufficient to say, as Randy Barnett does, that the language to which the Ratifiers agreed constitutes the meaning of the Constitution. It is true that Madison said, which Barnett quotes him as saying, that the Ratifiers’ understanding of the Constitution should control its interpretation. The Ratifiers, however, were not simply voting on words, but on changes in action to be made and implemented in structure and policy, so that the actions of the national government would be different in some respects from what it had done before. The Framers and Ratifiers of the Constitution intended for certain purposes to be accomplished, and it is in those purposes that meaning must be sought.


Frank Bowman: Why "Blanket Pardons" Are Unconstitutional
Michael Ramsey

Frank O. Bowman III (University of Missouri School of Law) has posted Why "Blanket Pardons" Are Unconstitutional (33 Federal Sentencing Reporter __ (2021)) (10 pages) on SSRN.  Here is the abstract:

In 1974, President Gerald Ford pardoned former President Richard Nixon for "all offenses against the United States" committed during both his terms of office. This pardon, unique in American history, was not limited even to offenses of which President Ford then had knowledge. At the close of the Trump Administration, it was speculated that Mr. Trump might issue similar "blanket pardons" to family, friends, or political supporters. He did not, so far as is now known. But he might have issued secret pardons of that breadth, or a future president might do so.

Accordingly, this paper examines the constitutionality of "blanket pardons" for all federal offenses, known and unknown. It examines the constitutional text, as well as British and American legal history, and concludes that, despite the Ford-Nixon precedent, such pardons exceed the president's authority under the Pardon Clause.

The president's pardon power is broad indeed, and is not constrained by a rigorous specificity requirement. However, as a matter of text, history, and sound constitutional policy, the act of pardoning requires that a president be aware of the basic character of the offenses to be pardoned and the identity of the person or class of persons who will be beneficiaries of a pardon. Without such knowledge, the judgment that is a prerequisite to an award of clemency cannot occur. A pardon for all federal offenses, regardless of whether the pardoning president is aware of even their general character, is therefore impermissibly broad.


New Originalism Center at Catholic University Columbus School of Law
Michael Ramsey

Via Ed Whelan at NRO Bench Memos: New Project for Constitutional Originalism and the Catholic Intellectual Tradition.  From the press release from Catholic University

The Catholic University of America Columbus School of Law received a $4.25 million gift to establish The Project for Constitutional Originalism and the Catholic Intellectual Tradition. 

Made by an anonymous trust, the gift establishing the project is intended to create an intellectual center for the study of how the United States Constitution’s original, distinctly American vision of ensuring the protection and flourishing of the human person emulates important aspects of the Catholic intellectual tradition.  

Using the lens of U.S. history, culture, and originalism scholarship, affiliated faculty and students will study the compatibility of the Constitution and Catholic thought over a wide range of constitutional issues. The project will foster consideration of the nature of the human person and the structures of civil society that the Constitution seeks to protect and allow to flourish, as well as the peculiarly American approach to government, political life, and the common good expressed in the Constitution, key founding documents, and originalist jurisprudence.

RELATED:  Also via Ed Whelan, Joel Alicea -- whose work has been highlighted on this blog -- has joined the Catholic University law school faculty.  From the press release

Catholic Law is excited to welcome Joel Alicea as the newest member of the faculty. “Being Catholic myself, I was drawn to the mission of the University and the great tradition of Catholic legal thought. From Aquinas to More to numerous modern scholars, the Church has contributed some of the greatest minds to the study of law, and many of the concepts that are central to modern legal systems owe much to that tradition. It is an honor to be part of that intergenerational conversation in my own small way.”

Alicea previously worked for several years at the law firm of Cooper & Kirk, PLLC, where he specialized in constitutional litigation. He previously served as a law clerk for Justice Samuel A. Alito, Jr., on the United States Supreme Court and for Judge Diarmuid F. O'Scannlain on the United States Court of Appeals for the Ninth Circuit. Joel's scholarship has focused on constitutional theory. He has been published in such places as the University of Pennsylvania Journal of Constitutional Law and the Harvard Journal of Law & Public Policy. He has also been active in public debates, publishing essays in journals such as National Affairs and The Public Discourse. Alicea’s interest in constitutional law can be traced to his undergraduate coursework at Princeton University—particularly Constitutional Interpretation and American Civil Liberties, both taught by Professor Robert P. George. “I found both courses engrossing; they were intellectually electrifying. Constitutional law has been my primary academic interest ever since.”


Thank You to University of Chicago Press For Correcting William Blackstone’s Warning
Andrew Hyman

I would like to publicly thank David Olsen and Brendan Carrick of the University of Chicago Press for correcting a misquote of William Blackstone in the web edition of The Founders’ Constitution.  This error may seem like a small mistake, but actually it turned Blackstone’s meaning on its head.  When I pointed it out, they fixed it, so three cheers for U. Chicago. 

In his famous Commentaries, Blackstone warned that, if the executive or the judiciary were allowed to control procedural law, then parliament would eventually lose control of substantive law too.  Here is what Blackstone wrote (emphasis added):

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself.

Unfortunately, there was a typographical error here, but Blackstone was astute, caught the error, and included it in the list of corrections at the front of his book.  The corrected version of Blackstone’s warning is as follows (emphasis added):

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself.

Of course, Blackstone’s warning has been disregarded here in America, and the vehicle for disregarding it has been the Due Process Clause.  In England, that clause simply meant that deprivations of liberty "must be by a legal authority” (per Justice Powys in Regina v. Paty, 92 Eng. Rep. 232, 234 (K. B. 1704)).  Here in America, the judiciary’s first big step in expanding that meaning was Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856).  There, the Supreme Court stated that the Due Process Clause “is a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law,’ by its mere will.”  The Court conveniently overlooked that the Due Process Clause already plainly prohibited Congress from releasing the other branches from the ancient principle that deprivations of liberty must be by a legal authority. 

To solve the nonexistent problem of applying the Due Process Clause against Congress, the Court in Murray’s Lessee proclaimed that all federal legislation must comply with “those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.”  To lawyers less prescient than William Blackstone, this rule from Murray’s Lessee would have been no cause for alarm, assuming the Court would stick to the historical approach that it announced in 1856, but the Court eventually meandered toward more subjective considerations, e.g. what shocks the Court’s conscience, or what seems fundamental to five of nine justices.  Even then, a typical American lawyer would not have been alarmed at the Court's purely procedural rulings, although courts have found ample ways to use procedural hurdles to undermine substantive law.  As Blackstone predicted, the outworks lay in ruins after 1856, leaving instead an inlet “to all manner of innovation in the body of the law itself.” 

Nowadays, we have a name for the inlet to which William Blackstone referred: “substantive due process.”  The framers of the Fourteenth Amendment did not see it coming; as Sixth Circuit Judge John Bush explained recently (quoting Michael McConnell and Nathan Chapman): “[n]o significant court decision, legal argument, or commentary prior to the adoption of the Fourteenth Amendment . . . so much as hinted that due process embodies the principle that certain natural liberties are inviolate against any laws.”  That’s correct, and I would include the Dred Scott decision in that category.  

Maybe it was always inevitable that Blackstone's warning would go unheeded in America, per the ancient maxim "Boni Judicis Est Ampliare Jurisdictionem."  That maxim, which means the duty of a good judge is to enlarge his jurisdiction, is a crummy maxim, and unconstitutional too.  But the maxim does perfectly describe human nature.

CORRECTION:  This post has been updated to reflect the correct author.

William Haun & Daniel Chen on Freedom of Assembly
Michael Ramsey

At Law & Liberty, William J. Haun and Daniel L. Chen: Where Two or Three Are Gathered (discussing Americans for Prosperity Foundation v. Rodriguez, argued to the U.S. Supreme Court on Monday).  Here is the introduction: 

... The [Americans for Prosperity] case involves two California non-profits challenging the state’s requirement that they—and every other non-profit registered in California—disclose their donors to make future law enforcement more “effective” and “efficient.” Over 40 amicus briefs lambasted this embrace of open-ended government surveillance—reflecting an ideological agreement so wide that NARAL Pro-Choice North Carolina and Wisconsin Right to Life joined the same brief. On the surface, widespread consensus in favor of associational privacy is surely welcome. But this agreement masks equally widespread, decades-long confusion over how and why the Constitution protects free association.

As the brief filed by our firm—the Becket Fund for Religious Liberty—explains, that confusion is at the core of this case, and solving it requires regrounding the right of “expressive” association at issue in the text, history, and tradition of the First Amendment’s Assembly Clause. The freedom of assembly has deep historical roots in religious assembly. This history confirms that, despite modern law’s recent emphasis on “expressive” association, assemblies do not exist simply, or even primarily, for expressive purposes. Rather, they exist primarily for formative ones. Shaping people in beliefs, traditions, rituals, customs, and ways of life—regardless of how politically “expressive” they are—requires a robust space outside the individual and the state for the freedom of assembly.

But the Supreme Court has yet to appreciate the formative core of association, nor has it clearly rooted the right of association in any constitutional provision. The result has been short shrift to the Constitution’s protection of civil society.

This case provides the Supreme Court with an ideal opportunity to reground free association in the Assembly Clause and recognize that assemblies do not simply allow individuals to express themselves. Rather, they form citizens in the virtues that make and sustain self-government.


More on Michael Dorf’s “Originalism’s Discontinuity Problem”
David Weisberg

With regard to Professor Dorf’s post “Originalism’s Discontinuity Problem,” I agree with Professor Ramsey that discontinuity is no particular problem for originalism.  (Nor is it a particular problem for constitutional textualism.)   But I would add one additional point.  Professor Dorf writes:

Justice Scalia…wrote…that stare decisis is an exception to originalism and textualism, adding…that it is likewise an exception to every theory of interpretation. He was right about originalism but that addition about other theories and methods is wrong. Stare decisis is not an exception to modes of statutory and constitutional interpretation that place precedent at their core—like Dworkin's law as integrity or Strauss's common law constitutionalism. If you build your theory based on precedent, then you will still sometimes have line drawing problems, but you won't have whole bodies of inconsistent law directly adjacent to one another[.]

I submit that, if precedent is made the “core” of constitutional interpretation—if a theory of constitutional interpretation is “buil[t]” and “based” on precedent—courts will be stuck with the consequences of previous legal decisions that, viewed from a more contemporary perspective, might deserve to be overturned.  If, e.g., the US Supreme Court always had a majority of justices who considered precedent to be the “core” of proper constitutional interpretation, the de jure racial segregation approved in Plessy vFerguson would still be constitutional, Lochner vNew York would to this day invalidate statutes that “interfere” with the liberty of person and right of free contract, and, under Bowers vHardwick, States could currently criminalize consensual sodomy.  Unswerving fidelity to precedent precludes the correction of results that, over time, might come to be seen as blatantly erroneous.       

Robert Gomulkiewicz: The Supreme Court's Chief Justice of Intellectual Property Law
Michael Ramsey

Robert W. Gomulkiewicz (University of Washington - School of Law) has posted The Supreme Court's Chief Justice of Intellectual Property Law (Nevada Law Journal, Vol. 22, 2022 forthcoming) (63 pages) on SSRN.  Here is the abstract:

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions which call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as one of the most prolific authors of patent law opinions in the history of the Supreme Court. Thus, at a time when intellectual property has become one of America’s most important assets, Justice Thomas has played an important role in the evolution of America’s innovation law and policy.

This article is the first to highlight the significance of Justice Thomas’s intellectual property jurisprudence. It considers how Justice Thomas emerged as the Roberts Court’s “chief justice” of intellectual property law, authoring more majority opinions than even colleagues known for their intellectual property law prowess. The article analyzes Justice Thomas’s key intellectual property opinions to understand their importance. It also highlights the distinguishing features of these opinions, including their faithful adherence to textualism, appreciation for the role of remedies, attention to technological and business context, awareness of the impact on intellectual property practitioners, and surprising unanimity. The article concludes that Justice Thomas’s deep respect for the constitutional separation of powers is at the heart of his intellectual property jurisprudence, as his opinions invite and sometimes nudge Congress to play its leading role in crafting intellectual property law.


Stéphane Sérafin et al.: The Common Good and Legal Interpretation
Michael Ramsey

Stéphane Sérafin (University of Ottawa), Kerry Sun (Sullivan & Cromwell LLP) and Xavier Foccroulle Menard (Norton Rose Fulbright Canada LLP) have posted The Common Good and Legal Interpretation: A Response to Leonid Sirota and Mark Mancini (Constitutional Forum, Vol. 30 No. 1 (2021) 39-54) (16 pages) on SSRN.  Here is the abstract: 

Recent debates in the United States and Canada bear witness to a renewed interest in the moral foundations of legal interpretation. This article offers a contribution to the ongoing debate in Canadian legal circles, responding to critiques by Leonid Sirota and Mark Mancini of the emergent theories of “common good originalism” and “common good constitutionalism”. Contrary to our interlocutors’ view, the natural law tradition does not “look to extraneous moral and policy commitments as guides for legal interpretation” nor does it see the law as a mere instrument to achieve “pre-determined outcomes.” Rather, it regards the positive law and natural law as reciprocally interrelated; natural law lends intelligibility to the positive law, while positive law makes concrete the abstract precepts of natural law. This perspective provides valuable insights into the activity of legal interpretation, as directed toward understanding and giving effect to the legislature’s reasoned choices for the common good.

And here's the introduction, which is helpful in describing the arguments to which the paper is responding (footnotes omitted):

A renewed interest in the moral foundations of legal interpretation in the United States is increasingly reverberating in Canada. For example, on February 22, 2021, Leonid Sirota and Mark Mancini published a post on the Double Aspect Blog entitled “Interpretation and the Value of Law” (“IVL I”). Although the post itself merely claimed to show “[w]hy the interpretation of law must strive for objectivity, not pre-determined outcomes,” the timing of the piece implies that it was meant to respond specifically to Josh Hammer, the Newsweek correspondent and constitutional lawyer, who has recently proposed a framework of “common good originalism” to correct the perceived failures of the originalist framework applied by Justice Gorsuch of the US Supreme Court in Bostock.

This is an argument that Sirota and Mancini appear to perceive as a threat to their preferred paradigm — textualism in statutory interpretation, originalism in constitutional matters — on the grounds that it introduces “substantive political content” into the law. Since then, Sirota and Mancini have published a further blog post, entitled “Interpretation and the Value of Law II” (“IVL II”), which purported to respond to the arguments we advanced in an earlier version of this article.  While the subsequent post clarified our interlocutors’ position on a number of issues, many of our initial arguments remain unaddressed.

Separately, our initial response to Sirota and Mancini prompted another comment by Asher Honickman, calling for a more robust contextual approach within an ostensibly positivist, textualist framework. As Honickman observed, “[t]here is a lively debate afoot in legal circles, both in the United States and now in Canada, on the ‘common good’” and its relation to juristic activity. In this article we reprise and elaborate upon our arguments, in light of the subsequent responses by our interlocutors. Specifically, we argue that, to the extent that Sirota and Mancini’s posts in IVL I and II should be read as a response to Hammer, they misunderstand his position as a threat to originalism. Sirota and Mancini’s proffered critique of “common good originalism” misses the mark, we suggest, because they confuse Hammer’s broadly positivist “common good originalism” with the quite different arguments advanced by Harvard law professor Adrian Vermeule, whom they explicitly criticized in IVL I as favouring an approach that “look[s] to extraneous moral and policy commitments as guides for legal interpretation.” 

That said, we also object to Sirota and Mancini’s characterization of the alternative natural law position they ascribe to Vermeule and others. Whatever else can be said about the ultimate merits of this jurisprudential tradition, proper natural law theories do not constitute a form of legal realism, as Sirota and Mancini appear to believe. That is to say, these theories do not regard legal reasoning or adjudication as mere instruments to achieve “pre-determined outcomes.”


Jamey Anderson: The Nondelegation Schism
Michael Ramsey

Jamey Anderson (University of Wisconsin Law School, J.D. candidate) has posted The Nondelegation Schism: Originalism Versus Conservatism (Wisconsin Law Review, forthcoming) (38 pages) on SSRN.  Here is the abstract:

The Supreme Court appears poised to breathe new life into the nondelegation doctrine, a judicially created theory of constitutional law that Congress may not delegate its legislative power to the executive or any other entity. Scholars have long criticized the nondelegation doctrine as poorly defined, unsupported by constitutional text and history, and impossible to implement without a major expansion of the judicial role. This Comment adds to this scholarship by arguing that the conservative majority’s proposed nondelegation revival is best understood not as the resurrection of a unified theory but rather as two distinct doctrinal inventions reflecting the ideological commitments of their chief proponents. Whereas Justice Gorsuch fashions an originalist standard from cases taken from before the New Deal era, Justice Kavanaugh applies a modern functionalist test to invalidate major rules disfavored by conservative policymakers. Though the justices appear eager to blend their approaches, they are in fact fundamentally incompatible. Indeed, the facts of Justice Gorsuch’s old cases largely fail Justice Kavanaugh’s test. This rift is more than academic, as the two standards produce different results in a contested area of regulatory law—federal greenhouse gas limits. This finding suggests that supporters of the modern administrative state should focus not just on whether the nondelegation doctrine is revived but also on what form it takes. How the Court resolves the conflicting demands of originalism and conservatism may offer an early look at a theme likely to define the new conservative majority.


Fordham Symposium on "The Federalist Constitution"
Michael Ramsey

Recently published, in the Fordham Law Review: a symposium on "The Federalist Constitution."  I've linked to some of these papers before, but they are especially impressive listed all together:

Foreword, by David S. Schwartz, Jonathan Gienapp, John Mikhail, & Richard Primus

Two Federalist Constitutions of Empire, by Gregory Ablavsky

Without Doors: Native Nations and the Convention, by Mary Sarah Bilder

President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era, by Saul Cornell

In Search of Nationhood at the Founding, by Jonathan Gienapp

Slavery’s Constitution: Rethinking the Federal Consensus, by Maeve Glass

The Federalist Constitution as a Project in International Law, by David M. Golove & Daniel J. Hulsebosch

The Unwritten Constitution for Admitting States. by Roderick M. Hills Jr.

Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792, by Thomas H. Lee

Executive Power and the Rule of Law in the Marshall Court: A Rereading of Little v. Barreme and Murray v. Schooner Charming Betsy, by Jane Manners

Equal Footing and the States “Now Existing”: Slavery and State Equality over Time, by James E. Pfander & Elena Joffroy

Reframing Article I, Section 8, by Richard Primus

The Other Madison Problem, by David S. Schwartz & John Mikhail

Presidential Removal: The Marbury Problem and the Madison Solutions, by Jed Handelsman Shugerman

I expect there's a lot here I don't agree with, but also a good bit that I do.

Thanks to Saul Cornell for the pointer.  Also, at Balkinization, Richard Primus comments

This week, the Fordham Law Review published a symposium called The Federalist Constitution.  The central impetus for the symposium, as explained in a brief Foreword (co-written by four of the symposium's organizers), is that the picture of the Founding that dominates constitutional law tends to be one shaped through the lens of the antifederalists and Democratic-Republicans who resisted the original pro-Constitution Federalists, rather than one that takes the ideas of those Federalists seriously enough on their own terms.  The symposium aims to correct this picture by asking how the Federalists thought about the Constitution in their own time.