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32 posts from June 2021


Balkinization Symposium on Kurt Lash's "The Reconstruction Amendments: Essential Documents": Complete Contributions and Professor Lash's Response
Michael Ramsey

At Balkinization, the symposium on Kurt Lash's "The Reconstruction Amendments: Essential Documents" is now complete.  Professor Lash has a general response.  Here are the contributions:

What is Reconstruction? by Gerard N. Magliocca

Kurt Lash and the Canons of Constitutional Law by Jack Balkin

Kurt Lash on Reconstruction (1): Defining the topic, setting the canon by Sandy Levinson

Kurt Lash on Reconstruction (2): Is the Fifteenth Amendment an Embarrassment? by Sandy Levinson

Not Too Much, Not Too Little: Frederick Douglass in Kurt Lash’s Reconstruction Volumes by Bradley Rebeiro 

What Reconstruction Demonstrates about Constitutional Change by Richard Primus 

The Reconstruction Amendments’ Canonical Texts by Darrell A.H. Miller

Embracing the Entirety; Close and Distant Reading of The Congressional Globe by Lea VanderVelde

An Unparalleled Reconstruction Political Time Machine by Christopher Green

The Continuing Value of Documentary Collections in Originalist Theory by Lee J. Strang

Originalism, Methodology, and the Reconstruction Amendments by Jennifer L. Mascott

From Professor Lash's response:

My deep and sincere thanks to Jack Balkin for hosting this symposium on “The Reconstruction Amendments: Essential Documents (2 vols.) (Kurt T. Lash, ed.) (University of Chicago Press 2021). Before responding to some of the questions and concerns raised in these remarkable essays, please allow me a moment to note how positively the reviewers responded to the collection: 

“Kurt Lash now stands alongside Max Farrand in doing extraordinary work to further constitutional knowledge by making a critical portion of our past more accessible.” (Magliocca)

 A “remarkable scholarly achievement.” (Balkin)

 A “splendid collection” and “an invaluable source of material (and insight) for anyone charged with teaching courses on the Constitution” (Levinson)

“Lash has hit the Aristotelian mean, providing just the right amount of primary material to facilitate insight into the political and constitutional complexities leading up to and engulfing the Reconstruction period. Scholars, judges, and citizens who seek to investigate the intricacies of Reconstruction will find Lash’s The Reconstruction Amendments: The Essential Documents invaluable.” (Rebeiro)

“[A]n impressive achievement: thorough, textured, and provocative.” (Primus)

“Canonical Texts” presented in a “masterful two volume set . . .. Lash has produced a single, critical resource for understanding a profound moment in American constitution making—a resource that is long, long overdue. . . . Lash has produced a book that every constitutional scholar and historian needs to own.” (Miller)

“[An] Unparalleled Reconstruction Political Time Machine” that “is, without a doubt, the best single place to go in order to recapture, first-hand, the intellectual environment from which the Thirteenth, Fourteenth, and Fifteenth Amendments emerged. It deserves a place on a shelf—given its heft, a relatively sturdy shelf—of every serious student of the Constitution.  . . . [This] wonderful and amazing achievement  . . . will permanently transform the way the Reconstruction amendments are discussed and studied.” (Green)

“Lash’s volumes curate sources ranging from newspaper articles to public speeches and letters to judicial opinions and congressional debates” [and are an] “indispensable” and “critical resource for anyone who values the historical meaning of this deeply important constitutional text. . . Lash’s work should be seen as a critical resource for both jurists and academics” (Mascott) 

After ten years of toil, this kind of response is deeply gratifying.

Now to the concerns and (light) criticisms. ...


Jeremy Telman: Which Part of 'Our Law' Is Originalism?
Michael Ramsey

D. A. Jeremy Telman (Oklahoma City University School of Law) has posted Which Part of 'Our Law' Is Originalism? (50 pages ) on SSRN.  Here is the abstract:

Will Baude and Stephen Sachs have argued that originalism should bind courts because originalism is “our law.” This Article attempts to specify, from the perspective of positive law, what part of our law originalism could be. It does so by identifying three challenges that Baude and Sachs face: a Kelsenian problem, a Hartian problem, and an empirical problem. The Article next considers Andrew Coan’s hypothetical constitutional amendment as a solution. The Article concludes that Baude and Sachs’s argument that originalism is our law remains deficient from the perspective of positive law.

I think originalism is some of our law but not all of our law.


Cedar Point v. Hassid: An Easy (?) Case from the Supreme Court
Michael Ramsey

At Volokh Conspiracy, Josh Blackman criticizes the Supreme Court majority (per Chief Justice Roberts) in Cedar Point Nursery v. Hassid (decided last week).  Cedar Point held that a California law requiring agricultural employers to permit union organizers access to private property violated the taking clause.  Professor Blackman points to some doctrinal issues, but from an originalist perspective I don't see why this isn't an easy case.  The right to exclude seems an essential component of the right to private property.  The California law infringed the right to exclude by requiring admission of the union organizers.  (In this sense, it's akin to requiring an easement for public access, which surely would be considered a taking.) Of course, the right to exclude has some historical exceptions but I doubt that there's any historical exception resembling an exception for union organizers.  (The dissent points to exceptions for government inspectors, which seems not at all analogous).

Professor Blackman worries about the distinction between temporary intrusions (as in this case, because the union organizers' access was limited to certain times) and permanent intrusions.  This may be a legitimate concern based on prior cases, but I think that only suggests that prior cases were misguided.  It shouldn't matter under the original meaning (I'm guessing) whether the intrusion is temporary or permanent -- it's still a taking of the right to exclude.  Thus in either case it's different from a "regulatory taking" -- that is, a regulation that deprives the property owner of some uses of the property but does not involve a physical intrusion.  The temporal extent of the physical intrusion might be a factor in determining "just compensation," but it shouldn't be a factor in determining whether a taking occurred.  So I think that, to the extent prior doctrine was unclear on this point, Cedar Point is a welcome clean-up of that law.

As an aside, it also seems to me that under the Constitution's original meaning the California law in Cedar Point should be found unconstitutional (not merely found to require compensation) because it does not provide for "public use."  That is, it does not require access to the claimant's property by the public (as would a public access easement); it only requires access by certain private parties.  Thus it's akin to the government taking an easement for the benefit of only a few people.  True, in Kelo v. New London the Court rewrote the takings clause to allow takings for "public purposes" not just for "public use," which might allow the California law's taking (if ti were compensated).  But, as Ilya Somin has shown, Kelo is inconsistent with the Constitution's original meaning.

As a further aside, Noah Feldman also criticizes the case at Bloomberg.  His complaint is mainly that the Court in Cedar Point engaged in "judicial activism," by which he appears to mean simply intervening against the political branches.  As he says in conclusion: "The upshot is that the conservative majority is still perfectly capable of engaging in activism when it chooses." But this is an unhelpful use of the phrase in support of a false claim of hypocrisy.  None of the six Justices in the majority in Cedar Point (least of all the strongly originalist Justices) opposes "judicial activism" in this sense.  Where the actions of the political branches transgress the Constitution's text and original meaning, originalism holds that the Court should intervene against the political branches.  One can call this "judicial activism," but that does not make it inconsistent with originalism.


A Note re: Fulton v. City of Philadelphia
David Weisberg

Regarding the Court’s recent decision in Fulton v. City of Philadelphia, I would add one point to the ongoing conversation.  In his concurring opinion, Justice Alito takes pains to determine “the normal and ordinary” meaning the words “prohibiting” and “the free exercise of religion” had when the First Amendment was adopted.  He concludes: “These words had essentially the same meaning in 1791 as they do today.”  (Alito slip op. 23-24.)  How does he reach that conclusion?  He primarily relies on Dr. Johnson’s dictionary published in 1755 (together with other 18tthcentury literary materials), and he concludes that Dr. Johnson’s definitions for those words are very similar to the definitions we would assign to them in 2021.  (Slip op. 24.)  Justice Alito doesn’t even refer to contemporary dictionaries; he implicitly relies on the understandings of competent English speakers today.  (Slip op. 25.) 

But Justice Alito misses completely the obvious fact that, if the meanings of words in the First Amendment are uncertain because the amendment was adopted in 1791, then the meaning of the words in Dr. Johnson’s 1755 dictionary should be even more uncertain.  Thus, Justice Alito’s opinion presents a classic exemplar of what I have identified (here) as the Paradox of Originalism.  The originalist’s reliance on literary materials that are roughly contemporaneous with provisions in the Constitution necessarily generates an infinite regress because, if the meanings of the words in a provision from 1791 must be ascertained by consulting roughly contemporaneous literary materials, then the meanings of the words in those roughly contemporaneous literary materials must be ascertained by consulting other roughly contemporaneous literary materials, and so on.  Infinite regresses are nasty things that always should be avoided.  I find it ironic that Justice Alito, in criticizing Justice Scalia’s opinion for the majority in Employment Division vSmith, praises Justice Scalia’s opinion for the majority in Heller vDistrict of Columbia as “a model of what a reexamination of the Free Exercise Clause should entail.”  (Slip op. 21.)  The Heller opinion is itself shot through with instances of the Paradox. 

There is a fundamental difference (too often overlooked by originalists) between a rebuttable presumption that the words and phrases in the Constitution all might have time-dated meanings that differ from their current meanings, and a rebuttable presumption that the words and phrases in the Constitution all might have meanings that are identical to their current meanings.  The former presumption generates the Paradox and its accompanying infinite regress; the latter does not.  Why any method of constitutional interpretation grounded on a rebuttable presumption that the words and phrases in the Constitution all might have meanings that are identical to their current meanings should be called “originalism” is a mystery to me.  But if “originalism” begins with the contrary rebuttable presumption, it generates an infinite regress.

More Cool Maps as Evidence of What the "United States" Meant in 1868
Andrew Hyman

In a recent post, Michael Ramsey discussed a recent Tenth Circuit opinion in Fitisemanu v. United States interpreting the Citizenship Clause of the Fourteenth Amendment.  In particular, Mike praised the dissent by Judge Bacharach.  In a note to Mike’s post, I mentioned my preference for the majority opinion by Judge Lucero.  

As to the dissent, Mike mentioned that it had “some super cool maps that I wish I'd found….”  Indeed, Judge Bacharach’s dissent included images of two maps, from 1857 and 1868, at pages 10 and 11 of that dissent.  Those maps from 1857 and 1868 used the term “United States” in a way that apparently included not just the states but also the territories.  The majority opinion countered by arguing that the term “United States” was also used sometimes during that century in a way that only included the states and not the territories:

A map published in the 1830s, for example, is titled “A map of the United States and part of Louisiana,” despite Louisiana having been a territory under one name or another since 1805. Mary Van Schaack, A Map of the United States and Part of Louisiana (c. 1830), www.loc.gov/resource/g3700.ct000876/ (on file with the Library of Congress).

Seeing as how Mike and I agree that map evidence is pretty cool, I want to mention a few more maps, which all show the term “United States” being used in contradistinction to the words “territory” or “territories.”  So, here are five maps that I came across during a quick internet search, in chronological order:

1) New map of that portion of North America, exhibiting the United States and territories…. Baltimore, Md. : Jacob Monk, 1854 (Engraved & printed by A. Hoen & Co.).

2) General map of the United States & their territory between the Mississippi & the Pacific Ocean by John Fiala (1859).

3) Military Map of the United States & Territories showing the location of the military posts, arsenals, Navy Yards, & ports of entry. Compiled from pub-doc--1861.

4) Map of the United States, and Territories. Together with Canada from Mitchell's New General Atlas. Philadelphia: S.A. Mitchell, Jr., 1861.

5) Map of the United States and territories, showing the extent of public surveys and other details, U.S. General Land Office (1867).

Just to be clear, I am not suggesting that most of the maps of these areas, during the years leading up to the Fourteenth Amendment, distinguished between the United States and the Territories, like these five maps did.  All I’m saying is that some did.  Maybe that was not the primary definition of "United States" back then, but we must use a secondary definition if that’s what the text and context suggest.  It's well known, by the way, that the term "United States" is used differently now compared to nineteenth century usage, in that it used to be plural more often than singular, although not every plural use signified exclusion of the territories. 


New Book: "Cases Without Controversies" by James Pfander
Michael Ramsey

Recently published: Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press 2021) by James E. Pfander (Northwestern).  Here is the book description from the publisher:

This book offers a new account of the power of federal courts in the United States to hear and determine uncontested applications to assert or register a claim of right. Familiar to lawyers in civil law countries as forms of voluntary or non-contentious jurisdiction, these uncontested applications fit uneasily with the commitment to adversary legalism in the United States. Indeed, modern accounts of federal judicial power often urge that the language of the Article III of the U.S. Constitution limits federal courts to the adjudication of concrete disputes between adverse parties, thereby ruling out all forms of non-contentious jurisdiction. Said to rest on the so-called “case-or-controversy” requirement of Article III, this requirement of party contestation threatens the power of federal courts to conduct a range of familiar proceedings, such as the oversight of bankruptcy proceedings, the issuance of warrants, and the adjudication of applications for mandamus and habeas corpus relief. By recounting the tradition of naturalization and other uncontested litigation in antebellum America and coupling that tradition with an account of the important difference between cases and controversies, this book challenges the prevailing understanding of Article III. In addition to defending the power of federal courts to hear uncontested matters of federal law, the book examines the way the Constitution's meaning has changed over time and suggests a constructive interpretive methodology that would allow the Supreme Court to take account of the old and the new in defining the contours of federal judicial power.

And here is the table of contents:


Part One: Thesis: Uncontested Adjudication in the Federal Courts

1. Chapter One: The Origins of Uncontested Adjudication
2. Chapter Two: Uncontested Proceedings on Federal Dockets in the Early Republic
3. Chapter Three: Probate and Domestic Relations Proceedings
4. Chapter Four: The Nineteenth-Century Perspective on Federal Judicial Power

Part Two: Antithesis: The Progressive Restatement of an Emerging Case-or-Controversy Requirement

5. Chapter Five: The Judicial Response to the Administrative State
6. Chapter Six: The Progressive Response to Lochner: Limiting Justiciability
7. Chapter Seven: The New Adverse-Party Rule Confronts Judicial Practice

Part Three: Synthesis: Cases, Controversies, and Litigable Interests

8. Chapter Eight: Uncontested Adjudication and the Modern Case-or-Controversy Rule
9. Chapter Nine: Evaluating Defenses of a Requirement of Adverse Interests
10. Chapter Ten: Uncontested Adjudication and Standing to Sue
11. Chapter Eleven: A Practical Guide to Uncontested Adjudication
12. Chapter Twelve: Toward a Constructive Constitutional History

Part Four: ConclusionForeword

Part One: Thesis: Uncontested Adjudication in the Federal Courts

1. Chapter One: The Origins of Uncontested Adjudication
2. Chapter Two: Uncontested Proceedings on Federal Dockets in the Early Republic
3. Chapter Three: Probate and Domestic Relations Proceedings
4. Chapter Four: The Nineteenth-Century Perspective on Federal Judicial Power

Part Two: Antithesis: The Progressive Restatement of an Emerging Case-or-Controversy Requirement

5. Chapter Five: The Judicial Response to the Administrative State
6. Chapter Six: The Progressive Response to Lochner: Limiting Justiciability
7. Chapter Seven: The New Adverse-Party Rule Confronts Judicial Practice

Part Three: Synthesis: Cases, Controversies, and Litigable Interests

8. Chapter Eight: Uncontested Adjudication and the Modern Case-or-Controversy Rule
9. Chapter Nine: Evaluating Defenses of a Requirement of Adverse Interests
10. Chapter Ten: Uncontested Adjudication and Standing to Sue
11. Chapter Eleven: A Practical Guide to Uncontested Adjudication
12. Chapter Twelve: Toward a Constructive Constitutional History

Part Four: Conclusion

(Via Dan Ernst at Legal History Blog.)


John McGinnis on Fulton, Smith and Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: The Fulton Opinion and the Originalist Future of Religious Freedom.  Here is the introduction:

last week in Fulton v. Philadelphia, the Supreme Court held that Philadelphia violated the Free Exercise Clause when it declined to employ a Catholic provider of foster care services because of the charity’s refusal to certify same-sex couples as appropriate foster parents. The Court reasoned that, because Philadelphia was willing to consider exceptions to its contractual nondiscrimination requirement, its prohibition on discrimination was not a generally applicable rule. The law thus was not insulated from constitutional challenge by Employment Division v. Smith. That important case permits government rules to burden religious exercise, so long as they are generally applicable and not targeted at religion. While the majority’s opinion did not overrule Smith, two concurrences joined by five justices suggest that Smith is on life support.      

And from later on:

Despite the significance of the majority opinion in limiting Smith, much of the media commentary on Fulton has buried the lede. The concurring opinions show there are very likely five votes to overrule Smith. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, is explicit in his 77-page concurrence, discussed below. But Justice Amy Coney Barrett’s concurrence, joined by Justice Brett Kavanaugh, shows that at least two other justices are considering overruling the case as well. 


Alito’s opinion is avowedly originalist, emphasizing that he is relying on the original meaning of the Clause, which Antonin Scalia, the author of Smith and the most famous originalist in recent times, neglected. That Alito has so clearly nailed his colors to the mast of originalism is itself significant. He has not heretofore been the most avowedly originalist justice on the Court. But in a speech to the Federalist Society in November, Alito said that he believes originalism is now the parole of the law on the Court and he vowed to focus on getting the form of originalism right.

In Fulton, Alito relies on the original meaning of the text as the key to constitutional interpretation. He argues that Smith is not right because it imports a requirement of discrimination that is nowhere in the text. That text provides that “Congress shall make no law prohibiting the free exercise of [religion].” Alito considers the usage, including dictionary definitions at the time. He then argues that if we put these definitions together, the ordinary meaning of “prohibiting the free exercise of religion” was (and still is) forbidding or hindering unrestrained religious practices or worship. That straightforward understanding is a far cry from the interpretation adopted in Smith. It certainly does not suggest a distinction between laws that are generally applicable and laws that are targeted.” Moreover, Alito correctly points out that it is anomalous to read a discrimination or equality requirement into the Free Exercise Clause, because none of the other provisions of the Bill of Rights has been understood to have such a component.

... [A]fter considering the dictionary definition of words, Alito invokes the legal context to support his reading of the Free Exercise Clause. For instance, he relies on clauses that protect religious exercise in state constitutions at the time of the federal constitution. He notes that these clauses frequently had the proviso that religious exercise would not be protected if it disturbed “the civil peace” or a similar formulation. Alito’s point here is that there would be little reason to include such provisos if the clause protected only against laws that discriminate against religion. 

In my view, such provisos and other similar limitations inferable from the legal context help with another problem in interpreting the Clause. It is not possible to interpret the Free Exercise Clause as a get-out-of-law-free card, whatever the law and whatever the religious practice. Satanic torture cults surely are not protected by the Constitution. And the legal context of Free Exercise shows that the meaning of the Clause—its meaning in the legal context—would not have required Courts to protect such kinds of observance from legal prohibitions....

A very important post, especially the last part, because as Professor McGinnis says, the key to getting the votes to overturn Smith is persuading Justices Kavanaugh and Barrett that there is a plausible originalist-grounded limiting principle allowing governments to regulate especially harmful religious practices.


Three Perplexing Cases from the Supreme Court
Michael Ramsey

This week's decisions by the Supreme Court featured some originalism (mostly in concurrences), but it's unclear who (if anyone) had the right answers.

In Mahanoy Area School District v. B.L., the Court held (8-1) that the First Amendment protects profane commentary on school activities by grade-school students posted on social media.  Justice Breyer's opinion for the majority is a characteristically unhelpful bit of pragmatism.  Justice Thomas in dissent argued that historical analysis favors the school:

While the majority entirely ignores the relevant history, I would begin the assessment of the scope of free-speech rights incorporated against the States by looking to “what ‘ordinary citizens’ at the time of [the Fourteenth Amendment’s]  ratification would have understood” the right to encompass. McDonald v. Chicago, 561 U. S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). Cases and treatises from that era reveal that public schools retained substantial authority to discipline students. As I have previously explained, that authority was near plenary while students were at school. See Morse v. Frederick, 551 U. S. 393, 419 (2007) (concurring opinion). Authority also extended to when students were traveling to or from school. See, e.g., Lander v. Seaver, 32 Vt. 114, 120 (1859). And, although schools had less authority after a student returned home, it was well settled that they still could discipline students for off-campus speech or conduct that had a proximate tendency to harm the school environment. 

Justice Alito, joined by Justice Gorsuch, offered a sort-of-originalist response in concurrence.  I'm not sure who has the better of the argument, but Thomas explored the history much more deeply.

In Arthrex Inc. v. Smith & Nephew Inc., the Court held (5-4) in a generally originalist-oriented opinion by Chief Justice Roberts that Administrative Patent Judges  (APJs) cannot exercise unreviewable executive authority because they are appointed by the Secretary of Commerce without Senate advice and consent.  Justice Gorsuch in concurrence took a textualist/originalist view:

By definition, an “‘inferior officer’ . . . has a superior.” Edmond v. United States, 520 U. S. 651, 662 (1997). To be an “inferior” officer, then, one must be both “subordinate to a[n] officer in the Executive Branch” and “under the direct control of the President” through a “chain of command.” Morrison, 487 U. S., at 720–721 (Scalia, J., dissenting). In this way, the “text and structure of the Appointments Clause” require a “reference to hierarchy.” Calabresi & Lawson, The Unitary Executive,  Jurisdiction Stripping, and the Hamdan Opinions: A Textualist Response to Justice Scalia, 107 Colum. L. Rev. 1002, 1018–1020 (2007). Only such an understanding preserves, as Madison described it, the “chain of dependence,” where “the lowest officers, the  middle grade, and the highest”—each and every one—“will depend, as they ought, on the President.” 1 Annals of Cong. 499 (Madison). And where the President, in turn, depends “on the community,” so that “[t]he chain of dependence” finally “terminates in the supreme body, namely, in the people.” Ibid.

I agree with the Court, too, that the statutory regime before us breaks this chain of dependence. In the America Invents Act of 2011 (AIA), Congress authorized the inter partes review (IPR) process, which permits anyone to file a petition asking the Patent and Trademark Office to “cancel” someone else’s patent. 35 U. S. C. §311. Congress assigned the power to decide an IPR proceeding to a specific group of officials—the Patent Trial and Appeal Board (PTAB). Under the AIA’s terms, three members from the PTAB—often, as here, administrative patent judges (APJs)—sit on a panel to decide whether to cancel a patent. §6(c). After the three-member panel issues its decision, a party may seek rehearing from another three-member panel. Ibid. But only a PTAB panel—and no other official within the Executive Branch—may grant rehearing. Ibid. If that fails, a losing party’s only recourse is to seek judicial review in the Court of Appeals for the Federal Circuit, which reviews the PTAB’s factual findings under the deferential substantial evidence standard of review. See §319; Oil States, 584 U. S., at ___ (slip op., at 4).

Under this statutory arrangement, APJs are executive officers accountable to no one else in the Executive Branch. A panel of bureaucrats wields unreviewable power to take vested property rights. This design may hold its advantages for some. Often enough, the Director of the Patent and Trademark Office and the President may be happy to wash their hands of these decisions. But by breaking the chain of dependence, the statutory scheme denies individuals the right to be subjected only to lawful exercises of executive power that can ultimately be controlled by a President accountable to “the supreme body,  namely, . . . the people.”

Gorsuch disagreed with the majority principally on the remedy; he thought the entire APJ structure was void, whereas the majority found that the provision making the APJ decisions nonreviewable could be severed and thus the defect could be cured by giving the Director of the Patent and Trademark Office power of review over them.

Justice Thomas in dissent responded that the the APJs are inferior officers under the functional test of Edmonds, but in his final section questioned Edmonds on originalist grounds.  I'm not sure what to think about this one either: on one hand Thomas seems right that the APJs are fairly minor officials well down the Commerce Department hierarchy, so it's odd to think of them as superior officers; but on the other hand Gorsuch seems right that they exercise a good bit of unreviewable authority, making them seem not inferior.

And in Yellen v. Collins the Court held that the structure of the Federal Housing Finance Agency (FHFA) is unconstitutional because its director is removable only for good cause.  That ruling was expected given the Court's holding last year in Seila Law as to the similarly-structured Consumer Financial Protection Bureau.  The difficult issue in Collins was the remedy: were the actions of the FHFA void due to its unconstitutional structure?  Justice Gorsuch thought so (consistent with his view in Arthrex, which raised a somewhat similar issue):

As the Court observes, the only question before us concerns retrospective relief. Ante, at 32. By the time we turn to that question, the plaintiffs have proven that the Director was without constitutional authority when he took the challenged actions implementing the Third Amendment. In response to such a showing, a court would normally set aside the Director’s ultra vires actions as “contrary to constitutional right,” 5 U. S. C. §706(2)(B), subject perhaps to consideration of traditional remedial principles such as laches. See ante, at 36, n. 26; Abbott Laboratories v. Gardner, 387 U. S. 136, 155 (1967). Because the Court of Appeals did not follow this course, this Court would normally vacate the judgment in this suit with instructions requiring the Court of Appeals to conform its judgment to traditional practice. Today, the Court acknowledges it has taken exactly this course in cases involving unconstitutionally appointed executive officials. Ante, at 33–34. Still, the Court submits, we should treat this suit differently because the Director was unconstitutionally insulated from removal rather than unconstitutionally appointed. Ante, at 33–34; see also ante, at 7 (THOMAS, J., concurring).

It is unclear to me why this distinction should make a difference. Either way, governmental action is taken by someone erroneously claiming the mantle of executive power—and thus taken with no authority at all....

But Alito for the majority disagreed, instead concluding that because the Director was constitutionally appointed, the claimants had to show particular harm from the defective removal provision, and remanded for the court of appeals to consider that question.  (Aside: if the claimants haven't made that showing I'm not sure why they have standing, but in an earlier part of the opinion Justice Alito said they do.)

In sum, I'm doubtful that originalism handles any of these cases well (or, at least, that the originalist-oriented Justices have found any conclusive guideposts).


Richard Samuelson on the Constitutionality of a Global Minimum Tax
Michael Ramsey

At Law & Liberty, Richard Samuelson (California State University, San Bernardino - history): Is a Global Tax Constitutional?  From the introduction:

The Biden Administration has declared its support for a “global minimum” corporate tax rate of 15%.  So long as this is merely a declared goal, it’s a legal nothing, worth no more than the paper it’s written on.  It is worth asking if it could ever be anything more than that? Absent an amendment to the U.S. Constitution, probably not.  ...

According to Article I, section 7, of the U.S. Constitution, “All Bills for raising Revenue shall originate in the House of Representatives.”  That language was part of the Connecticut Compromise between the larger and smaller states. The House of Representatives would be proportionate to population and the Senate would be based upon the equality of states.  The Compromise was a way of ensuring that the larger states did not gang up on the smaller, less powerful ones.  As taxes ought to be made in proportion to population (or wealth, but they had no good way to do that, so they used population) the House of Representatives, being the representative of population, was accorded the right to originate all tax bills.

What does that mean for this case of a global tax rate backed by a treaty?...

Professor Samuelson then describes the 1790s debate over whether a treaty could require the House to spend money (a somewhat parallel issue). He notes that Madison argued it could not:

What if a treaty requires revenue to be spent?  Does the treaty power supersede the provision in Article I, section 7?  James Madison, then a leader in the House of Representatives, argued that a treaty could not spend money without the consent of the House of Representatives. It would only require a bare majority of the House to approve, however. ...

[Madison reasoned that [t]he U.S. has “a Constitution of limitations and checks” that divides power “into three great departments” and “around each of these portions of power were seen, also, exceptions and qualifications.”  In Madison’s view it would be rendering those checks and qualifications moot by reading the treaty power as an unlimited one.  Hence, any treaty that requires money to be spent must also gain the assent of a majority of the House before that spending provision becomes law.  President Washington disagreed with Madison here.   ...  In 1796, however, Washington lost the argument, and since Madison’s day his reasoning has carried the field. 

Thus, applied to the global tax issue: 

Can the U.S. bind itself to a global minimum tax?  With a constitutional amendment, of course, but not otherwise.  Note that Madison’s reasoning in 1796 was only about spending money, and not about tax, although the Jay Treaty did give Great Britain what we now call “Most Favored Nation” status. That status, although it does have to do with tariff rates, is also about the particular rate for a particular country, and not about tariff rates in general.  But if the treaty power is, presumptively, limited even in the case of spending, so much more ought we to conclude that the U.S. government has no right completely to delegate the right to set tax rates via a treaty.  It is hard, probably impossible, to reconcile a permanent abdication of American sovereignty via the treaty power with the very idea of constitutional government itself.

I agree with Madison to the extent of the argument summarized above, but I think Professor Samuelson overreads both Madison and the Constitution.  It's correct that the revenue clause requires the House to originate revenue bills and thus a treaty cannot in itself impose higher tax rates in the United States.  (Aside: the tax treaties that the U.S. commonly enters into are probably constitutional because they generally don't raise revenue; see here.) But that doesn't mean a treaty providing for a global minimum tax would be unconstitutional -- it just means that such a treaty would have to be non-self executing.  That is, it would be an international obligation of the United States to impose the tax, but it would still require implementation by Congress, with origination in the House, to be part of U.S. law. (I discuss this aspect of non-self executing treaties here: A Textual Approach to Treaty Non-Self-Execution, pp. 1643-45).

Professor Samuelson goes on to say:

But an administration might try to follow the precedent the Obama Administration set when it called the Iran treaty an “agreement,” not requiring the assent of two-thirds of the Senate.  ... But if, per settled precedent going back to 1796, a treaty cannot legally take away from the Congress the Constitutional authority to spend money authorized in a treaty, not to mention set tax rates, then, surely, something less than a treaty cannot do so.

I agree, but that doesn't mean the Biden administration can't enter into a non-binding agreement on a global minimum tax.  it just means that such an agreement (like the Obama administration's "agreement" with Iran) isn't binding on the U.S. under international law and isn't part of U.S. domestic law until enacted by Congress.  (See here).


Josh Hammer: Overrule Stare Decisis
Michael Ramsey

Josh Hammer (Edmund Burke Foundation; Newsweek) has posted Overrule Stare Decisis (National Affairs, Fall 2020) (14 pages) on SSRN.  Here is the abstract:

Few doctrines in originalist constitutional scholarship are as contested as stare decisis—that is, the weight to which precedent ought to be, or constitutionally even can be, considered by judges and other constitutional actors when such precedent conflicts with the original understanding of a specific constitutional provision in question.

This essay, written in the aftermath of Justice Clarence Thomas's clarifying concurring opinion in the 2019 case of Gamble v. United States, argues that the Constitution itself affirmatively forbids reliance upon demonstrably erroneous precedent that conflicts with the original understanding of the Constitution. It argues that originalists who argue for a greater role for precedent in constitutional adjudication, such as the late Justice Antonin Scalia, err in doing so.

An excellent summary of the arguments, whatever one thinks of the conclusion.  Among other interesting points (p. 8):

Thomas’s concurrence in [United States v.] Gamble also relied heavily on [Professor Caleb] Nelson’s scholarship on the founding-era process of liquidation. As the term “liquidation” was understood by founding-era political and legal luminaries, the iterative actions of constitutional actors—of both judicial and nonjudicial varieties—could help, in the early stages following the enactment of a genuinely obscure or ambiguous constitutional provision, assist in discovering and ultimately ascertaining the meaning of that provision. Citing Nelson’s 2001 essay that brought the concept of
liquidation to the forefront of originalist scholarship, Thomas opined that a precedent “may remain relevant when it is not demonstrably erroneous.”

The key word for Thomas is “relevant.” Whereas Nelson persuasively cites Madison’s late-stage “flip-flop” on the issue of the constitutionality of the Bank of the United States to support the contention that a “sufficiently deliberate course of legislative or judicial decisions” can “settle” the meaning of a genuinely obscure legal provision and therefore actually bind future actors, Thomas refrains from going quite that far. Thomas does not view the iterative liquidation process as binding, per se; he merely suggests that if an ambiguous legal provision has been liquidated in a way that is not  demonstrably erroneous from the perspective of original-public meaning originalism, then it is permissible for a later court to adhere to that liquidated provision even if it would have ruled differently as an issue of first impression.

This passage invites two questions about Justice Thomas' view.  First, what does it mean to be "demonstrably erroneous"?  The passage suggests (correctly, I think) that his "demonstrably erroneous" means something more than "more likely erroneous than not."  But how high a standard is it:  beyond a reasonable doubt/clearly erroneous? Or something in between?

Second, if it's right that a precedent that is likely wrong but not "demonstrably erroneous" is only "relevant" but not decisive to future cases, what else goes into the evaluation of whether it should be followed?  At this stage does the judge consider matters like reliance interests?