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35 posts from April 2021


Nelson Lund on Young v. Hawaii
Michael Ramsey

At Law & Liberty, Nelson Lund (GMU - Scalia): Fake Originalism and the Right to Bear Arms.  From the introduction: 

Several years ago, the Ninth Circuit held that the Second Amendment does not protect the right to carry a concealed weapon in public. In its recent 7-4 decision in Young v. Hawaii, that court has now taken the next and final step: “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.” Notwithstanding a couple of strangely delphic suggestions that the right to bear arms might be something other than the right to carry them in public, the court deleted that right from the Constitution.

This aggressive exercise of judicial power does not rest on the once-fashionable “living Constitution,” a fiction through which judges may amend the written Constitution to conform with their own policy views. At least not openly. Young is instead based on fake originalism.

Fake originalism comes in several varieties, including living originalismcommon-good originalism, and living textualism. All of them wrap judicial usurpation of the authority to amend the law in the respectable guise of originalism. Many questions about original meaning are honestly hard to answer because the relevant evidence is sparse, equivocal, or both. But some arguments are so illogical and bereft of supporting evidence that they constitute a stealth form of living constitutionalism. The Young opinion, more than a hundred pages long, is a massive exercise in fake originalism.

The majority opinion was written by Judge Jay S. Bybee, a George W. Bush appointee who is an accomplished legal scholar. He has taught and published widely in the field of constitutional law, and his academic literary skills are on full display in Young. The court’s treatment of the Constitution cannot be attributed to incompetence, carelessness, or an inability to understand Judge Diarmuid O’Scannlain’s crushing dissent. . . .


Stern and TerBeek on The History of Originalism
Mike Rappaport

Following the lead of Senator Ed Markey (who claims that “Originalism is racist. Originalism is sexist. Originalism is homophobic.”), Slate writer Mark Joseph Stern interviews Calvin TerBeek about his new article claiming that originalism is rooted in racism. There is so much that is problematic about this little interview that is hard to know where to start.  So let me just focus on the key points.

TerBeek claims that modern originalism grew out of segregationists' attempt to oppose Brown v. Board of Education.  TerBeek then traces the theory’s growth from that point through Raoul Berger and Robert Bork, and then to more recent originalists.

1. The first – and main problem with this view – is that it appears to commit the genetic fallacy – the notion that the source of an idea determines its validity. Suppose that modern originalism did originate in people who were racists. That would not show originalism is mistaken.  Nor would it show that there are no good nonracist reasons for originalism or that current originalists are racists. 

I was completely unaware of this segregationist history when I became an originalist back in the 1980s.  I became an originalist based on rule of law ideas that I had discovered in the political philosophy of Friedrich Hayek.  There was no racism there. 

The question is not whether some people, at some point, used mistaken understandings of originalism to support their segregationist ideas.  The question is whether originalism can be justified.   

2. In fact, if one wants to pursue the roots of theories, one often finds racist views. Progressivism and the living constitutionalism it promoted were championed by academic and President Woodrow Wilson, an awful racist. Does that refute progressivism and living constitutionalism?  Surely not. 

3. TerBeek’s argument is peculiar. He claims that originalism grew out of opposition to Brown. But these days, most originalists believe that the original meaning justifies Brown.  And nonoriginalists criticize originalists for claiming that Brown is consistent with the original meaning.  If originalism is racist, then one might imagine that originalists would be against Brown, not in favor of it.  In fact, many originalists see Jim Crow and Plessy v. Ferguson as based on nonoriginalist readings of the Constitution.    

(I made a few minor word changes to the post after publication)

James Stern: First Amendment Lochnerism & the Origins of the Incorporation Doctrine
Michael Ramsey

James Y. Stern (William & Mary Law School) has posted First Amendment Lochnerism & the Origins of the Incorporation Doctrine (University of Illinois Law Review, Vol. 2020, No. 5, 1501) (40 pages) on SSRN.  Here is the abstract:

The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine’s justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton’s recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as having three basic components, of which First Amendment incorporation predominated. It goes on to show how First Amendment incorporation drew in important ways from existing doctrine, including important strands of “Lochnerian” jurisprudence, and was structured in a way that in turn facilitated subsequent incorporation of criminal procedure protections. Finally, it notes that in its critical beginning moments, incorporation decisions did not consider, much less adjudicate, the kinds of issues that are today central to discussions of judicial federalism.


Judge James Ho on Lower Court Originalism
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Originalism in the Lower Courts: Judge Ho's dissental in Texas v. Rettig.  From the introduction: 

[Friday] the Fifth Circuit denied rehearing en banc in Texas v. Rettig. In February, the three-judge panel (Barksdale, Haynes, and Willett) issued a substitute opinion in that case. This case presented a challenge to an ACA regulation. The panel turned away Texas's nondelegation doctrine challenge.

Judge Ho, and four of his colleague, dissented from the denial of rehearing en banc: Judges Jones, Smith, Elrod, and Duncan. Here, I'd like to praise the five judges who dissented. They embraced a central plank of originalism in the lower courts: the refusal to extend non-originalist precedents, unless that extension is justified by the original mening of the Constitution. I have written about this concept in my article, Originalism and Stare Decisis in the Lower Courts.

And from Judge Ho's opinion (favorably citing San Diego-based Judge Patrick Bumatay of the Ninth Circuit):

As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: "[O]ur duty [is] to apply the Constitution—not extend precedent." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)….

"As inferior court judges, we are bound by Supreme Court precedent. Yet[] . . . judges also have a 'duty to interpret the Constitution in light of its text, structure, and original understanding.'" Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quoting NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring)). "While we must faithfully follow [Supreme Court] precedent . . . , '[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'" Id. (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff'd in part, rev'd in part and remanded, 561 U.S. 477 (2010)). See alsoe.g.Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring) (noting that an important purpose of rehearing en banc is "to better align our precedents with the text and original understanding of the Constitution" "where the Supreme Court has not yet ruled").

SOMEWHAT RELATED: Also on Friday, the Supreme Court vindicated Judge Bumatay's dissent in Tandon v. Newsom, summarily reversing the Ninth Circuit on the constitutionality of California's covid-oriented restrictions on indoor religious services. (Via Professor Blackman, here.)


Seven (?) Originalist-Oriented Members on the Presidential Commission on the Supreme Court
Michael Ramsey

President Biden established the Presidential Commission on the Supreme Court of the United States on Friday by executive order.  The White House press release calls it "bipartisan group of experts on the Court and the Court reform debate."  There's some truth to that.  Already there's been widespread commentary and criticism regarding the membership, which I won't try to catalog.  I'll note one aspect of the membership:  by my count, there are seven originalist-oriented members:  Jack Balkin (Yale), Will Baude (Chicago), Judge Thomas Griffith (D.C. Circuit), Caleb Nelson (UVA), Adam White (GMU-Scalia), Keith Whittington (Princeton, political science), and me [ed.: well, that last one was unexpected].  Of course, that's out of 36.

At Volokh Conspiracy, Ilya Somin has more.


Kevin Tobia, Brian Slocum & Victoria Nourse: Statutory Interpretation from the Outside
Michael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law) and Victoria Nourse (Georgetown University Law Center) have posted Statutory Interpretation from the Outside (Columbia Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside — revealing what rules drafters follow — but never from the outside. This Article is the first empirical study of ordinary meaning as determined by ordinary people.

We first offer a novel framework for empirically testing interpretive canons. We argue that any empirical inquiry should test whether ordinary people implicitly invoke a canon in accordance with the circumstances that trigger its applicability. Implementing our framework, we recruited 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The results reveal that many existing interpretive canons reflect how ordinary people evaluate rules, but some popular canons do not.

The empirical findings support several implications, even beyond providing crucial evidence about which traditional canons “ordinary meaning” actually supports. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Furthermore, ordinary people interpret rules with an intuitive anti-literalism. This finding in particular challenges textualist assumptions about ordinary meaning.

We hope the Article initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction.

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


LeFrak Conference at Michigan State on Free Speech and Intellectual Diversity on Campus
Michael Ramsey

Via Jonathan Adler at Volokh Conspiracy, today through Saturday the Michigan State University Department of Political Science's LeFrak Forum on Science, Reason and Modern Democracy is sponsoring a conference titled "Freedom of Speech and Intellectual Diversity on Campus."  Here is the schedule:

Keynote Address - Thursday, April 8, 5:00-6:30 pm EST

Randall Kennedy, "The Race Question and Freedom of Expression." Randall Kennedy is the Michael R. Klein Professor at Harvard Law School, preeminent authority on the First Amendment in its relation to the American struggle for civil rights.

Day One: Intellectual Diversity - Friday, April 9
11:30 am - 1:00 pm EST
Panel 1: What are the empirical facts about lack of intellectual diversity in academia and what are the causes of existing imbalances?

Paper: Lee Jussim, Distinguished Professor and Chair, Department of Psychology, Rutgers University, author of The Politics of Social Psychology. 

Discussant: Philip Tetlock, Annenberg University Professor, University of Pennsylvania, author of “Why so few conservatives and should we care?” and Cory Clark, Visiting Scholar, Department of Psychology, University of Pennsylvania, author of “Partisan Bias and its Discontents.”

2:00 pm - 3:30 pm EST

Panel 2In what precise ways and to what degree is this imbalance a problem?

Paper: Joshua Dunn, Professor and Chair, Department of Political Science, University of Colorado, co-author of Passing on the Right: Conservative Professors in the Progressive University.

Discussant: Amna Khalid, Associate Professor of History, Carleton College, author of “Not A Vast Right-Wing Conspiracy: Why Left-Leaning Faculty Should Care About Threats to Free Expression on Campus."

4:00 pm - 5:45 pm EST

            Panel 3What is To Be Done?

Paper: Musa Al-Gharbi, Paul F. Lazarsfeld Fellow in Sociology, Columbia University and Managing Editor, Heterodox Academy, author of “Why Care About Ideological Diversity in Social Research? The Definitive Response.”

Paper: Conor Friedersdorf, Staff writer at The Atlantic and frequent contributor to its special series “The Speech Wars,” author of “Free Speech Will Survive This Moment.”

Day Two: Freedom of Speech - Saturday, April 10

11:30 am - 1:00 pm EST

Panel 1:  An empirical accounting of the recent challenges to free speech on campus from left and right. What is the true character of the problem or problems here and do they constitute a “crisis”?

Paper: Jonathan Marks, Professor and Chair, Department of Politics and International Relations, Ursinus College, author of Let's Be Reasonable: A Conservative Case for Liberal Education.

Respondent: April Kelly-Woessner, Dean of the School of Public Service and Professor of Political Science at Elizabethtown College, author of The Still Divided Academy

2:00 pm - 3:45 pm EST

Panel 2: But is Free speech, as traditionally interpreted, even the right ideal? -- a Debate 

Ulrich Baer, University Professor of Comparative Literature, German, and English, NYU, author of What Snowflakes Get Right: Free Speech and Truth on Campus

Keith Whittington, Professor of Politics, Princeton University, author of Speak Freely: Why Universities Must Defend Free Speech.

4:30 pm - 6:15 pm EST

Panel 3: What is To Be Done?

Paper: Nancy Costello, Associate Clinical Professor of Law, MSU. Founder and Director of the First Amendment Law Clinic -- the only law clinic in the nation devoted to the defense of student press rights.  Also, Director of the Free Expression Online Library and Resource Center.

Paper: Jonathan Friedman, Project Director for campus free speech at PEN America – “a program of advocacy, analysis, and outreach in the national debate around free speech and inclusion at colleges and universities.”

The LeFrak Forum is an outstanding project that should be better known than it is.  I participated in one of their conferences (on immigration law and policy) several years ago.  Among other things, their commitment to intellectual diversity is notable.


New Book: "The Hollow Core of Constitutional Theory" by Donald Drakeman
Michael Ramsey

Recently published, by Donald Drakeman (Notre Dame): The Hollow Core of Constitutional Theory: Why We Need the Framers (Cambridge University Press 2021).  Here is the book description from the publisher:

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often disagree with each other about virtually everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today.

Next week (Thursday, April 15) the Federalist Society will host an online discussion of the book, featuring Lawrence Solum and Keith Whittington:  Original Meaning or Framers' Intent? A New Book and an Age-Old Debate.  From the Federalist Society announcement:

In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant "public meaning" originalism, this book seeks to revive the importance of the framers' intent in constitutional theory and interpretation.

Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.

Registration information for the event is at the link.


Textualism and War Powers
Michael Ramsey

I have posted my article Textualism and War Powers (University of Chicago Law Review, Vol. 69, No. 4, p. 1543, 2002) (96 pages) on SSRN.  It's from quite a while back but I think it remains a significant contribution.  Here is the abstract:

This Article explores the eighteenth-century use of the phrase "declare war," with the goal of shedding some light upon the original understanding of the Constitution's Declare War Clause It finds that "declaring" war in the eighteenth century had a broader meaning than is commonly supposed. Nations could declare war by formal proclamation, but nations could also "declare" by action alone. An armed attack showing an intent to settle differences between nations by force created a state of war between those nation& Launching such an attack, even in the absence of a formal proclamation, was called "declaring" war. As the Article explains this provides a textual basis for the common assertion that Congress's constitutional power "to declare War" broadly encompasses the power to initiate warfare. It also refutes the claim that the President can order military attacks upon foreign powers without Congress's approval so long as no formal declaration is involved. The Article further argues however, that since Congress's constitutional power is only to declare war (by proclamation or by authorizing an attack), presidential actions that do not create a state of war-even if they involve the use of military force or the threat or likelihood of war-do not require congressional authorization.

The article was inspired by the apparent disconnect between the common assumption in the post-ratification period that the Constitution limited the President's independent ability to initiate war and the text's reference only to the power to "declare" war -- which sound like a reference only to formal pronouncements.  As the abstract indicates, on further investigation it seemed clear (to me anyway) that "declare" war was used in a much broader sense in the eighteenth century, referring not just to formal proclamations but also to commencement of hostilities.  Thus there actually isn't any tension between the text and the common founding-era interpretation of it.

Saikrishna Prakash in a subsequent article undertook a much more broad ranging investigation of eighteenth century sources and reached a similar conclusion about the meaning of "declare."  I think it's now a fairly common view among textualist/originalists.

Mike Rappaport adds: I should add that I believe this article is one of the most important articles produced during this recent period of originalist renaissance.  It took the text seriously, explained how it accorded with constitutional purpose and history, and did so with a novel and persuasive interpretation.  Of course, the interpretation wasn't novel in the sense that the Framers' generation did not know it.  Rather, later generations did not have the knowledge that the Framers' generation had.   


Aaron Tang on Finding a Judicial Middle Ground
Michael Ramsey

At The Atlantic, Aaron Tang (Davis): The Simple Principle That Can Fix American Law -- What if a coherent legal philosophy could exist between the poles of living constitutionalism and originalism?  From the introduction:

... As a field, the law lacks a satisfying, middle-ground response to the core philosophical question that judges must face: By what legal theory should they decide difficult cases—ones in which the law is unclear and where any ruling risks inflaming division among the American people?

Liberal and conservative judicial approaches are, of course, well established. The late Ruth Bader Ginsburg captured the former approach when she testified during her confirmation hearings that the Constitution should be interpreted so as to govern “not just for the passing hour, but for the expanding future.” By contrast, her conservative successor, Amy Coney Barrett, is now the fourth self-professed originalist on the Court.

The rift between living constitutionalism and originalism is not merely an esoteric debate among judges. It is equally salient—and equally partisan—among the broader public. A recent Pew Research poll found that while 88 percent of liberal Democrats believe that the Supreme Court should “base its rulings on what the Constitution means in current times,” 79 percent of conservative Republicans say the Court should “base its rulings on the Constitution’s original meaning.”

But what is the judicial philosophy that occupies the middle ground? There is, of course, no way to split the temporal difference between originalism and living constitutionalism. Either the law’s meaning is fixed in time, or it isn’t. Some prominent academics have worked to re-brand originalism as itself a neutral and centrist approach. But on balance, the results have tended to track conservative views.

What America lacks today, in other words, is a judicial philosophy that can mediate the usual theories advanced on the left and the right. This absence might be every bit as much of a problem for our legal culture and legal system as the absence of centrist judges. Or, rather, it might be the underlying problem altogether. For without a compelling philosophy of judicial moderation, what hope is there for the reemergence of judicial moderates?

And from later on:

The year 2020 will long be remembered as a year of tragic and unparalleled adversity, from the onset of the deadly global pandemic, to glaring reminders of society-wide racial injustice, to Donald Trump’s ill-fated effort to steal the election. But even as we grieved, worried, and mobilized for change, something encouraging happened, unexpectedly, at the Supreme Court: The justices stumbled onto the beginnings of a compelling theory of judicial moderation.

It started last summer, at the end of one of the most monumental terms in recent history. Over a 25-day sprint, the Court handed down high-profile opinions concerning the rights of LGBTQ workers; the fate of hundreds of thousands of undocumented immigrants who had been brought to America as small children; impassioned efforts to obtain Trump’s private financial records; a controversial Louisiana abortion regulation; religious-school vouchers; and whether much of eastern Oklahoma remains an Indian reservation.

These cases raised genuinely difficult legal questions with enormous stakes. And in all of them, the Court’s decisions followed an intriguing logic. Rather than resting solely on some highly debatable conclusion as to a one-and-only “correct” meaning of the law—whether rooted in arguments over original meaning or in evolving precedent or societal values—the Court justified its rulings by pointing to an additional rationale: the goal of minimizing the harm of its decisions. The Court did so in a particular way—by identifying and ruling against the side with the greatest ability to avoid the harm it would suffer in defeat. (I’ve previously called this the “least harm principle.”)

I suspect, though, that the "least harm principle," at least in the hands of liberal judges or law professors, mostly yields liberal results (making it, of course, not a middle ground but repackaged liberal living constitutionalism).  But Professor Tang is mistaken in thinking that originalism and (liberal) living constitutionalism are the relevant poles.  As I've argued before, originalism is actually the middle ground between conservative living constitutionalism and liberal living constitutionalism, yielding conservative results sometimes and liberal results (or intermediate results) other times.  See, e.g., here (and also here and here).