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30 posts from July 2021

07/31/2021

Matthew Schafer on New York Times v. Sullivan
Michael Ramsey

Matthew Schafer (Fordham University School of Law) has posted In Defense: New York Times v. Sullivan (71 pages) on SSRN.  Here is the abstract:

New York Times v. Sullivan, the landmark Supreme Court case that helped shape our understanding of the First Amendment, is under attack. Twice now in opinions accompanying orders relating to certiorari, Clarence Thomas and, more recently, Neil Gorsuch have drawn into doubt the rule recognized in that case: that public official libel plaintiffs must plead and ultimately prove that a defendant published knowing the defamatory statement was false or with a high degree of awareness that it probably was. They either want to throw this “actual malice” rule out altogether or reexamine its implications and, potentially, prune it back. While some of these attacks are focused on more pragmatic concerns, a central attack, shared by both Thomas and Gorsuch, is that Sullivan is ahistorical and thus divorced from an original understanding of the First Amendment at the time of the Founding or the Reconstruction. Many commentators have seemingly accepted this assessment uncritically. This article challenges that view. It marshals substantial historical evidence that rebuts several of the justices’ specific historical arguments. More fundamentally though, through marshaling this evidence, it demonstrates that far from adopting the English common law of libel in the early United States, the Founders, federal and state legislatures, courts, and parties in litigation adopted a uniquely American understanding of freedom of the press - one where the severe rules of the English common law of libel were rejected so that citizens in a newly formed republican government could freely debate the conduct of those with power over the affairs of society.

07/30/2021

Corpus Linguistics and Heller (Part III)
David Weisberg

Continuing my review of Duke Law’s series of essays devoted to corpus linguistics (CL) and D.C. v. Heller (my previous posts are here and here), this is a comment on the post written by Dennis Barron, professor of English and linguistics, which is entitled “Corpus Linguistics, Public Meaning, and the Second Amendment.”  Prof. Barron’s post includes a great deal of common sense, but is ultimately unsatisfying.  His concluding sentence states: “Yes, the corpus data helps us interpret the Second Amendment, but we shouldn’t need evidence from a corpus or the imagined utterances of an eighteenth-century proletariat to know that soldiers bear arms, hunters carry guns, and villains pack heat.”  (Footnote omitted.)

What is unsatisfactory, to my way of thinking, is this.  Justice Scalia’s opinion for the majority in Heller devotes substantial attention to the meaning of the phrase “keep and bear Arms” in the 2nd Amendment.  (554 US at 570-92.)  After consulting various dictionaries published around the amendment’s ratification in 1791, Justice Scalia turns to what he calls “founding-era sources.”  He writes:

The most prominent examples are those most relevant to the Second Amendment: nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”  It is clear from those formulations that “bear arms” did not refer only to carrying a weapon in an organized military unit. (554 US at 584-85, fn. omitted.)

Prof. Barron does not even mention the existence of these nine state constitutional provisions, much less discuss them, and that is what is disappointing.  In a scholarly argument, surely fairness requires that one address what are claimed to be some of the “most prominent” and “relevant” facts supporting the adversary’s position. 

Here are the nine relevant state constitutional provisions cited and quoted by Justice Scalia (554 US at 585, n.8):

Pennsylvania Declaration of Rights (1776): “That the people have a right to bear arms for the defence of themselves and the state...”

Vermont Declaration of Rights (1777): “That the people have a right to bear arms for the defence of themselves and the State...”

Kentucky Constitution (1792): “That the right of the citizens to bear arms in defence of themselves and the State shall not be questioned”

Ohio Constitution (1802): “That the people have a right to bear arms for the defence of themselves and the State...”

Indiana Constitution (1816): “That the people have a right to bear arms for the defense of themselves and the State...”

Mississippi Constitution (1817): “Every citizen has a right to bear arms, in defence of himself and the State”

Connecticut Constitution (1818): “Every citizen has a right to bear arms in defense of himself and the state”

Alabama Constitution (1819): “Every citizen has a right to bear arms in defence of himself and the State”

Missouri Constitution (1820): “That their right to bear arms in defence of themselves and of the State cannot be questioned”

These nine constitutional provisions were (I presume, I don’t really know the history) all proposed and endorsed by senior political leaders in each State; they all treat of a right to “bear arms”; they all were approved by a majority of voters in each State, which, in the aggregate, must have amounted to tens of thousands of voters; they all were placed in the foundational legal document—the constitution—of each State; and they all were adopted relatively close in time to 1791.  I therefore think it would be fair to say that the contexts in which those nine provisions were proposed and adopted were strikingly similar to the context in which the 2nd Amendment was proposed and adopted. 

Prof. Barron says that we shouldn’t need a corpus or proletarian utterances from the 18th century “to know that soldiers bear arms [and] hunters carry guns[.]”  But the nine foregoing constitutional provisions do not convey the knowledge that  only  soldiers bear arms.  Rather, the nine provisions teach us that “the people”, “the citizens”, and “every citizen” also can bear arms.  Moreover, the nine provisions do not convey the knowledge that one who bears arms must do so with a purpose  exclusively related to military service.  Instead, the nine provisions teach us that citizens or the people have a right to bear arms “in defense of themselves”, and every citizen has a right to bear arms “in defense of himself”.  Bearing arms in defense of oneself is, I submit, not coterminous with military service.  Clearly, when people used the phrase “bear arms” in America around the end of the 18th century, it was their understanding, in a proper context, that people other than soldiers could bear arms for purposes other than military service.

Prof. Barron discusses Aymette v. State, 21 Tenn. 152 (Tenn. 1840), in which the Tennessee supreme court held that the State could prohibit the concealed carrying of a bowie-knife in a public place, notwithstanding the provision in the State’s constitution which declared “that the free white men of this State have a right to keep and bear arms for their common defence.”  It should be obvious that Tennessee’s constitutional arms-bearing provision is materially different in form from the nine provisions cited by Justice Scalia in Heller.  The former provision refers to a single purpose underlying or justifying the constitutional right to keep and bear arms—the “common defence” of a specified class of men.  The latter nine provisions all refer to what are ostensibly two different purposes—defense of himself (or themselves) and defense of the State.  Why the plain language of nine state constitutional provisions should be negated or superseded by an ambiguous provision in one state constitution is a mystery.            

Prof. Barron asserts that there is a “long-held understanding that bear arms has always been a military term[.]”  In support of that assertion, he quotes from the Aymette opinion:

A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day for forty years, and yet it would never be said of him, that he had borne arms; much less could it be said that a private citizen bears arms because he has a dirk or pistol concealed under his clothes, or a spear in a cane.

First, insofar as the foregoing relates to firearms carried or borne without concealment, it is dicta—it is not an essential part of the reasoning supporting the Aymette result. Mr. Aymette was neither bearing nor carrying a rifle without concealment; he was carrying and concealing a bowie-knife.  And he was neither hunting nor engaged in military service; he was looking to settle a quarrel with an antagonist.  Nine state constitutional provisions directly imply that a person, or people, or citizens might bear arms for his or their self-defense, which is different from hunting deer.  Nothing in Aymette says or implies that people cannot bear arms in or for their own defense.

Prof. Barron says that the “long-held understanding” is bolstered by a CL search conducted by historian Saul Cornell, who found more than 100 uses of bear arms in founding-era documents; 96% had “a military context”.  So, 4% did not have a military context.  I would think that those who study linguistics would be the first to agree that, in understanding a word or phrase, context is crucial.  I submit that, when we consider the use of bear arms in the 2nd Amendment, the most similar contexts are found in roughly contemporaneous state constitutional arms-bearing provisions.  Nine of those provisions directly imply that those words, in those contexts, can be understood as applying either to someone defending himself or to someone in military service.  Even if those uses amount to no more than 4% of the total, I think they carry the day. 

07/29/2021

Orin Kerr: Katz as Originalism
Michael Ramsey

Orin S. Kerr (University of California, Berkeley School of Law) has posted Katz as Originalism (71 Duke Law Journal, forthcoming 2022) (50 pages) on SSRN.  Here is the abstract:

The “reasonable expectation of privacy” test of Katz v. United States is a common target of attack by originalist Justices and originalist scholars. They argue that the Katz test for identifying a Fourth Amendment search should be rejected because it lacks a foundation in the constitution’s text or original public meaning. This is not just an academic debate. The recent ascendancy of originalists to the Supreme Court creates a serious risk that the reasonable expectation of privacy test will be overturned and replaced by whatever an originalist approach might produce.

This Article argues that originalist opposition to Katz is misplaced. Properly understood, the Katz test is consistent with both originalism and textualism. The “reasonable expectation of privacy” framework both accurately tracks the constitutional text and reflects a sound interpretation of its original public meaning. The originalist criticism of Katz is based on a misunderstanding of what the Katz test does. Instead of creating a constitutional free-for-all, the test merely preserves the original role of the Fourth Amendment against the threat of technological change. Ironically, the alternatives that originalist and textualist critics have proposed are either Katz in disguise or are less rooted in text and original public meaning than Katz itself.

(Via Volokh Conspiracy.)

07/28/2021

Franita Tolson: The Reconstruction Acts as Sources of Constitutional Meaning
Michael Ramsey

Franita Tolson (USC Gould School of Law) has posted 'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning (169 University of Pennsylvania Law Review, forthcoming) (14 pages) on SSRN.  Here is the abstract:

This Essay argues that the Reconstruction Acts, which readmitted Arkansas, North Carolina, South Carolina, Louisiana, Georgia, Alabama, Florida, Virginia, and Mississippi back into the union, are a source of constitutional meaning that bears on the right to vote under the Reconstruction Amendments and the requirement of republican government enshrined in the Guarantee Clause of Article IV, Section 4. Despite the fact that Congress enacted these statutes contemporaneously to the ratification of the Fourteenth and Fifteenth Amendments and, importantly, at a time when Congress aggressively enforced the Guarantee Clause, these Acts are overlooked in modern constitutional discourse because scholars have long viewed their terms as legally unenforceable.

As this Essay will show, this view is mistaken. The readmission of the former Confederate states was the first time that Congress clearly articulated the requirements of republicanism, free from the albatross of slavery and in light of the suffrage requirements of the new Amendments. The Reconstruction Acts imposed limitations on southern states with respect to the voting rights of their citizens as a condition of reentering the union. In doing so, these statutes shed light on the reach of Section 2 of the Fourteenth Amendment and, importantly, the universe of crimes for which one can be disenfranchised consistent with the republican guarantee. Section 2, in particular, allows Congress to reduce a state’s delegation in the House of Representatives by removing disfranchised voters from the basis of population used for apportionment, but permits states to disenfranchise individuals “for participation in rebellion or other crime.” Clarifying Section 2, the Reconstruction Acts specify that these states can disenfranchise their residents only for crimes "as are now [1868] felonies at common law" and not for the wide range of crimes that are currently used to disenfranchise individuals in all southern states.

Turning to the recent debate in Florida over the re-enfranchisement of individuals with felony convictions, this Essay concludes that, when states disenfranchise their citizens in violation of Section 2 and the Guarantee Clause, as informed by the Reconstruction Acts, these violations constitute an abridgment of the right to vote and render their governments unrepublican in form. The fact that people are impermissibly disenfranchised for crimes that were not felonies at common law makes the Florida statute requiring payment of all fines and fees a poll tax. Because Congress’ enforcement authority empowers it to prevent such abridgments, that body has substantial authority, pursuant to its authority under the Fourteenth and Twenty-Fourth Amendments, to remedy this disenfranchisement through either reduced representation or other appropriate penalties.

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

07/27/2021

Bradley Rebeiro on a "Better" Originalism
Michael Ramsey

At Law & Liberty, Bradley Rebeiro (BYU): Redeeming the Constitution.  From the core of the argument:

... Is there a way to rescue the original meaning of the Constitution but maintain the integrity of the judge’s role to say what the law is, rather than what it should be? If the “better” originalism is imprudent, and the “correct” originalism only serves to remind us of our dark past and draw into question whether the original understanding is worthy of our loyalty and respect, perhaps originalism should simply be done away with. Or perhaps not.

Indeed, it may be prudent for us to look for a “better” originalism and, luckily for us, confronting our past may still teach us valuable lessons for the present. Our current crisis of identity is not unlike that of the antebellum period. As the nation struggled over its identity (a struggle which eventually led to Civil War), the Constitution laid at the center of the debates. Was the Constitution pro-slavery or anti-slavery?

... Constitutional abolitionists sought to wrest the Constitution from the grasp of the “Slave Power” by interpreting it as an anti-slavery document. These abolitionists, including Lysander Spooner, Gerrit Smith, and Frederick Douglass, understood the Constitution as an instantiation of the Declaration of Independence, that its original purpose was to establish freedom for all. “We the people” did not mean “We the [white] people” or “We the [white male] people,” but all persons naturally born or naturalized into the Union. The Union suffered from improper administration, not improper principles. The Garrisonians and pro-slavery defenders were doing the Constitution a disservice by associating it with the perpetuation of slavery. Rather, in the famous words of Frederick Douglass, the Constitution was “a glorious liberty document.”

These abolitionists interpreted the Constitution somewhat similar to how originalists do today. They looked to the plain meaning of the words of the document at the time of adoption. When searching for that meaning, rather than argue what the Framers intended to accomplish, they often made arguments based on how the public understood the Constitution. ... [They] recognized that the positive law (in this case the Constitution) was binding. However, its binding nature only subsisted so long as it was in harmony with the natural law. Thus, when interpreting the positive law, these abolitionists emphasized natural rights in their methods. As they sought the plain meaning of words, they did so with an eye specifically to the Constitution’s purpose: to protect the natural rights of all persons. They therefore reconciled the Constitution’s many provisions with an anti-slavery agenda that would bring about gradual abolition.

And in conclusion:

However, looking to the past and how constitutional abolitionists met the problem of slavery and the Constitution challenges us to reconsider how we understand this tension between originalism and natural law theory to see if there remains a better way to reconcile the two. What is more, it shows us that there can be a time when taking more seriously natural law principles over mere positivism can indeed be the prudent thing to do. Constitutional abolitionists understood that respecting positive law did not mean that they disregard the natural law in the way they interpreted the Constitution; nor did natural law require them to disregard the people who adopted the Constitution. But natural law did require them to understand the original meaning in a particular way—it guided them to reconcile that meaning, as much as possible (and at times quite creatively), with natural rights.

There could be a method that has both the reliability of originalism and the moral authority of the natural law. Indeed, we need a method that can reconcile the Constitution with natural rights. Originalism as it is practiced now likely would not have been equal to the task in the antebellum period, and it may not be equal to today’s challenges. The Constitution can only demand our respect and loyalty if it adequately reflects the natural law and thereby protects our natural rights. Originalism has great appeal given its rigorous methodology, but it lacks a certain moral quality that can redeem the Constitution’s soul. [Hadley] Arkes and company have importantly challenged originalism in what feels like a watershed moment in our nation’s constitutional history. Indeed, they have already done much in an attempt to carve out a new path. Perhaps more will contribute efforts to answering whether we can truly find a “better” originalism.  Perhaps that effort will generate a robust theory of interpretation, much like originalism has in the past four decades. For now, constitutional abolitionists provide a sketch of how we can understand the Constitution and its provisions in a way that demands our loyalty but also respects all elements of law, natural, positive, and prudential.

RELATED: In the Wall Street Journal, a counterpoint from David B. Rivkin Jr. and Andrew M. Grossman: The Temptation of Judging for ‘Common Good’.  From the conclusion:

As with liberal talk about the “living Constitution,” the high-minded rhetoric [of common good originalism] conceals an assertion of unbridled power. Liberals, [they] justly complain, rack up victories because they are unabashed about enforcing their own moral purposes. That’s “a form of tyranny,” to which they urge conservatives to respond in kind by remaining cognizant of results and not splitting hairs (and votes) over arcane matters of legal interpretation.

That is a far cry from originalism, the interpretive philosophy Justice Antonin Scalia championed. Scalia looked to the plain meaning of the words in the Constitution at the time they were enacted. He also championed textualism, which applies the same approach to statutory interpretation. The common gooders, by contrast, would put a thumb on the scale (or, when necessary, a brick) to reach what they believe are conservative ends. They say that anything less is “morally neutered.”

But originalism and textualism defer to the morality wrought in the law by those who enacted it. The duty of a judge in a system of self-government is to exercise “neither Force nor Will, but merely judgment,” Alexander Hamilton wrote in Federalist No. 78. Or as Scalia put it in his dissent from Planned Parenthood v. Casey (1992), “Value judgments . . . should be voted on, not dictated.”

The Constitution doesn’t codify the common good, let alone appoint judges as its inquisitors. The Framers, as students of history, understood that mankind is fallible and that a government powerful enough to prescribe moral truth could achieve only tyranny. Rather than put their faith in the beneficence of statesmen, they established a structure that pits faction against faction to “secure the blessings of liberty,” as the preamble puts it. James Madison thought self-government “presupposes” public virtue, which can’t be dictated, only sown in the soil of freedom.

(Thanks to Andrew Hyman for the pointer.)

07/26/2021

Corpus Linguistics and Heller (continued)
David Weisberg

I’d like to make a second comment regarding Duke Law’s blog series Corpus Linguistics and the Second Amendment.  (My first post is here.)  This time, I’ll discuss Mr. Neil Goldfarb’s post, “Regarding the Strength of the Corpus Evidence (and Noting Issues that the Evidence Doesn’t Resolve), focusing on his discussion of the phrases “right to bear arms” and “right to keep and bear arms”. 

It will be remembered that Justice Scalia’s majority opinion in Heller cites arms-bearing provisions from the constitutions of nine States, adopted from 1776 to 1820. (554 US 585, n. 8.)  This is what Mr. Goldfarb has to say about state constitutional provisions:

[T]he state provisions are inconclusive because in each such provision, bear arms was modified by a prepositional phrase that has no analogue in the Second Amendment:

bear arms for the defence of themselves and the state

bear arms, in defense of himself and the state

bear arms in defense of themselves and the State

It seems to me that it’s inappropriate to assume that the use of bear arms without any modification would have been understood in the same way as the use of the phrase as modified in the state provisions.   (All italics and underlines in all quotations are in original.)

In a linked post, he says this about state constitutions: “Given that the issue to be decided is how the right to keep and bear arms as used in the Second Amendment was likely to have be[en] understood, there was nothing to be learned from considering uses of that very phrase or of closely related variants, in a similar context.”   

I find all of this mind-boggling.  First of all, I think a thoughtful person believes that, if one is trying to understand the meaning of a phrase in a context, one hopes to find examples of that very phrase or closely related variants in similar, albeit not identical, contexts.  But, from Mr. Goldfarb’s perspective, these are negatives—the more dissimilar the context, the better.

Secondly, Mr. Goldfarb says it is inappropriate to assume that “bear arms” would be understood in the same way in state constitutional provisions and the 2nd Amendment.  Agreed—we want reasoned arguments, not assumptions.  But, should we therefore assume that “bear arms” would not be understood in the same way in state constitutional provisions and the 2nd Amendment?  The second proposition isn’t implied by the first.  If we begin with an open mind, we must reject another assumption, namely, that there is “nothing to be learned” from States’ constitutions.           

Thirdly, we’re told that the reason the state constitutions can legitimately be disregarded is that they all include modifying prepositional phrases that have no analogue in the 2nd Amendment.  But Mr. Goldfarb provides a link to CL data supporting the conclusion that “bear arms” in the 2nd Amendment “would most likely have been understood as conveying the idiomatic sense relating to the military[.]”  He reports that CL provides 531 arguably relevant uses of the phrase “bear arms” or closely related phrases, and that, after excluding all state constitutional arms-bearing provisions, no more than 26 uses could be deemed consistent with Heller.  All the rest are military uses that are inconsistent with the majority opinion in Heller

Mr. Goldfarb offers eight examples (which I assume he randomly chose) of uses that relate only to the military and thus tend to contradict Heller.  Of those eight examples, two are uses in which the subject phrase is immediately followed by a prepositional phrase that has no analogue in the 2nd Amendment:

“bear arms in Defence of our Country”

“borne Arms in defence of this State” 

So, Mr. Goldfarb disregards state constitutional provisions because they include prepositional phrases having no analogue in the 2nd Amendment, yet, of eight randomly-selected examples of uses that purportedly support his preferred understanding of the amendment, two uses—twenty-five percent of the sample—display that very same feature, that is, they include prepositional phrases having no analogue in the 2nd Amendment.  Are prepositional phrases the kind of disqualifiers that disqualify only those uses that tend to support Justice Scalia’s interpretation of “bear arms”?  Apparently so.           

I think the nine States’ constitutional provisions—all of which are formulated more or less along the lines of “bear arms in (or for) (the) defence of themselves (or himself) and (of) the State”—are important in reaching a correct understanding of the 2nd Amendment; it requires a kind of willful blindness to not see their importance.  The fact that the States’ arms-bearing constitutional provisions and the 2nd Amendment have similar contexts—they all appear in constitutions, which are important foundational legal documents; they all make reference to rights to “bear arms”—enhances, rather than detracts from, the value of the former as guides to understanding the latter.  All of the nine States’ constitutional provisions make reference to both self-defense and the defense of the State.  To my mind, this is important evidence that the right referred to in the 2nd Amendment potentially includes the right to keep and bear arms for self-defense and other civilian purposes.  That does not imply, however, that either Heller or McDonald was correctly decided.  (For a more complete exposition of my views on both cases, see here.)

07/25/2021

There are Better Arguments for Overturning the Insular Cases than the Ones Based Upon the Citizenship Clause [Updated with Comments]
Andrew Hyman

I have no definite opinion about whether the Insular Cases ought to be completely overturned, or cabined, or something in between.  But it does seem like there are better ways of doing it than relying upon the Citizenship Clause.  For some background on the continuing controversy about the Insular Cases see the blog post written a few days ago by my co-blogger Michael Ramsey (who also wrote a law review article about it).  Basically, those cases held that there are two kinds of U.S. territories: “incorporated” territories that are on the way to statehood, and “unincorporated” territories that are not expected to get statehood.  Those cases generally held that residents of the incorporated territories are entitled to full constitutional rights, whereas people in the unincorporated territories are only entitled to a slimmed-down version of the most fundamental constitutional rights.

Most of the current arguments against the Insular Cases are based on the Citizenship Clause which does not explicitly mention territories and therefore is of dubious relevance: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  Back when that clause was ratified in 1868, the term “United States” sometimes referred to the states minus the territories, and various clauses in the Constitution are best read the same way (e.g. the Eleventh Amendment which refers to “one of the United States”).   The Tenth Circuit Court of Appeals recently discussed various textual reasons for reading “the United States” in that narrow manner when it comes to the Citizenship Clause, one of those textual reasons being the clause’s “effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’”  I will get back to this point below, but first would like to list three different originalist arguments for overturning (or cabining) the Insular Cases that seem like much stronger arguments than the one based on the Citizenship Clause:

First, one could argue that unincorporated territories are unconstitutional because they are not within the constitutional power to admit new states.  There is no general power granted in the Constitution to conquer and control the world forever.

Second, one could instead rely upon the Territories Clause which says, “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States….”  The word “needful” here is significant.  One could plausibly argue that it is not “needful” to recognize constitutional rights that are different depending upon whether a territory is incorporated or unincorporated.    

Third, one could make a more subtle argument based on the Territories Clause.  While it might be needful for rights to apply uniformly in all U.S. territories in order to limit the U.S. government as distinguished from the territorial government, it might not be needful to interfere with the self-government of an unincorporated territory by interceding between the territorial government and its own populace.

Having just summarized a few potentially reasonable constitutional arguments against the Insular Cases, I will excuse myself from trying to summarize possible counterarguments, and will instead return now to the wrongness of using the Citizenship Clause to overturn the Insular Cases.  Although internal congressional deliberations are usually not worth much, at least they can show that an idea might be plausible, and this quote from Illinois Senator Lyman Trumbull falls within that category: “the first section [of the proposed amendment] refers to persons everywhere, whether in the States or in the Territories or in the District of Columbia.”  It’s not exactly clear what Trumbull meant (e.g. maybe he meant that the word "State" meant "State or Territory" throughout the first section), but in any event the public was not really privy to Trumbull's remark, judging by the zero hits I get at newspapers.com.  The same goes for legislative history on the other side, including the statement by Iowa Congressman James F. Wilson that, “A citizen of the United States is always a citizen of the state in which he resides….”  But there was one person who got a lot of press on this point: Ohio Congressman James Ashley urged (in July 1867 and again in December 1867) that the pending Fourteenth Amendment be replaced with one that includes this language: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state or territory wherein they reside” (emphasis added).  See 40th Congress 2nd Session Cong. Globe 117 (December 10, 1867).  If you check www.newspapers .com, you will find Ashley’s proposal covered in nineteen different newspapers throughout the country, and the list can be expanded by consulting other databases.  So, clearly, the public was very much on notice that the Citizenship Clause did not explicitly refer to any territories, and that a proposal in Congress to do that failed.

Had Congressman Ashley succeeded in his well-publicized effort to alter the Citizenship Clause in 1867, then I would agree the term “United States” in the Citizenship Clause was used in its broader sense, and therefore that the Insular Cases are unconstitutional for that reason.  But he didn’t, it wasn’t, and they aren’t.

MICHAEL RAMSEY RESPONDS: I agree with Andrew Hyman that the Fourteenth Amendment's citizenship clause isn't the principal basis for arguing that the Insular Cases were wrongly decided.  I don't agree at all with his three suggestions as to what the main arguments against the Insular Cases are (particularly the first and third ones).  The fundamental flaw in the Insular Cases is that absolutely nothing in the original Constitution's text, background understanding, contemporaneous commentary or post-ratification practice suggests that there are two tiers of U.S. territories, one entitled to full constitutional protections and the other entitled to only constitutional protections that are "fundamental" (whatever those may be).  The two-tier theory didn't emerge until it became convenient to the U.S.'s imperial ambitions in the aftermath of the Spanish-American War.

As to his idiosyncratic view  that the citizenship clause does not convey constitutional citizenship on persons born in any U.S. territory (including D.C.), I've responded before and won't repeat those arguments.  I'll add only that I don't think Congressman Ashley's proposal adds anything.  Ashley's proposal, it seems to me, had nothing to do with U.S. citizenship.  Rather, Ashley thought there ought to be -- in addition -- a concept of territorial citizenship akin to state citizenship. But since the territories, unlike the states, didn't have sovereignty apart from the U.S. as a whole, that concept made little sense and so wasn't adopted.  That doesn't suggest that people born in the territories aren't U.S. citizens (an entirely different proposition), only that people who reside in the territories (regardless of where they were born) don't have a state citizenship in addition to their U.S. citizenship.  To the extent (if at all) that Ashley thought the clause didn't convey U.S. citizenship on persons born in the territories, his view was inconsistent with the more common understanding (as I've described here).

BRIEF REPLY FROM ANDREW HYMAN: Mike assumes that I don’t think the Citizenship Clause implies any right to birthright citizenship in the District of Columbia. Actually, I would say that birthright citizenship in the District is an indirect implication rather than a direct implication of the Citizenship Clause.  This is because Article I, Section 8 says Congress shall “exercise like Authority” over the District as it exercises over federal enclaves within the states, and since Congress cannot deny birthright citizenship in the latter then it cannot in the former.  I also don’t believe national citizenship disappears if one moves outside of the states and/or outside of the District of Columbia, for reasons that I explained previously.

07/24/2021

Judge Jay Bybee: Reverse Incorporation
Michael Ramsey

Jay Bybee (U.S. Court of Appeals for the Ninth Circuit) has posted Reverse Incorporation (111 pages) on SSRN.  Here is the abstract: 

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court declared that it was “unthinkable” that the Equal Protection Clause did not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause.

The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the Nineteenth Century—but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant. This Article reviews the history of reverse incorporation, much of which has not been told before. This Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating the congruent constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V.

07/23/2021

Randy Barnett on Supreme Court Expansion
Michael Ramsey

At Volokh Conspiracy, Randy Barnett: Court Packing is Unconstitutional - A law changing the number of justices to affect the Court's decisions is neither necessary nor proper, (The post summarizes and quotes Professor Barnett's testimony to the Presidential Commission on the Supreme Court, delivered at its public meeting on Tuesday).  From the introduction:

To appreciate the constitutional problem, we first need to locate the power that Congress is exercising when it sets the number of justices. It is the Necessary and Proper Clause, which empowers Congress to make a law that is necessary and proper to carry into execution the judicial power that Article III vests in the judicial department.

Article III does not specify the size of the Court, but for the past one hundred and fifty-two years, a nine-member Supreme Court has become an entrenched constitutional norm. To change the Norm of Nine, Congress needs to pass a new law. According to the letter of the Constitution, any such law must be both "necessary" and "proper."

In his opinion as Treasury Secretary on the constitutionality of a national bank, Alexander Hamilton offered the following test of a law's necessity: "The relation between the measure and the end; between the nature of the mean employed toward the execution of a power, and the object of that power must be the criterion of constitutionality." Today, we call this the requirement of means-end fit. A law must have an appropriate "end" or "object" and "the means" it adopts must be sufficiently related to that end.

In McCulloch v. Maryland, Chief Justice John Marshall elaborated on this test when he wrote,

Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

Of utmost importance is this how Marshall's rule of construction starts: "Let the end be legitimate…." Having set the number of justices, Congress may not then enact a law to change that number for the illegitimate end of affecting how the Court rules. That such an end is illegitimate is evidenced by the rationales for court expansion offered by FDR in the 1930s and by House Democrats today. These rationales are mere pretexts for the illegitimate end of changing how the Court rules in particular cases.

07/22/2021

Seth Barrett Tillman & Josh Blackman: Offices and Officers of the Constitution, Part I [Updated]
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) and Josh Blackman (South Texas College of Law Houston) have posted Offices and Officers of the Constitution, Part I: An Introduction (South Texas Law Review, Vol. 61, No. __, 2021) (7 pages) on SSRN.  Here is the abstract: 

In this Article, we introduce our planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. This series will explain the original public meaning of twelve clauses of the Constitution that refer to six categories of offices and officers. First, the phrase “officers of the United States” refers to appointed positions in the Executive and Judicial Branches. Second, the phrase “office . . . under the United States” refers to appointed positions in the Executive and Judicial Branches, and also includes non-apex appointed positions in the Legislative Branch. Third, the phrase “Office under the Authority of the United States” includes all “office[s] . . . under the United States,” and extends further to include a broader category of irregular positions. Fourth, the phrase “Officer” of “the Government of the United States” refers to the presiding officers identified in the Constitution. Fifth, the word “Officer,” as used in the Succession Clause, refers to those who hold “office . . . under the United States” and those who are “Officer[s]” of “the Government of the United States.” Sixth, the phrase “Office or Public Trust under the United States” encompasses two categories of positions: “Office[s] . . . under the United States” and “Public Trusts under the United States.” The former category includes appointed positions in all three branches; the latter category includes federal officials who are not subject to direction or supervision by a higher federal authority in the normal course of their duties.

Our categorization excludes elected officials from the categories “officer of the United States” and “office . . . under the United States.” Not everyone agrees with our Minimalist View. Professors Akhil Reed Amar and Vikram David Amar have put forward an Intermediate View: the elected President is an “officer of the United States,” but members of Congress are not. Professor Zephyr Teachout advances a Maximalist View: elected and appointed positions, in all three branches, are “offices” and “officers.” And some scholars may embrace a fourth approach. Under a Clause-Bound View, fine variations in the Constitution’s text should not be used to distinguish different kinds of offices and officers. Rather, this view purports to be guided by the specific purposes that animate individual clauses.

As a general matter, it is impossible to reject any of these four approaches with 100% certainty. Instead, we make a limited claim: our approach, the Minimalist View, is better than its known rivals. The Framers chose different “office”- and “officer”-language in different clauses of the Constitution. These provisions were altered throughout the Convention to standardize and harmonize how the Constitution refers to offices and officers. And the conduct of President Washington, his cabinet, and the First Congress was consistent with the Minimalist View. This evidence undermines the Intermediate, Maximalist, and Clause-Bound Approaches.

Part I, this Article, introduces our planned ten-part series. Part II will expound on the four approaches to understand the Constitution’s “office”- and “officer”-language. Part III will analyze the phrase “officers of the United States,” which appears in the Appointments Clause, the Commissions Clause, the Impeachment Clause, and the Oath or Affirmation Clause. Part IV will trace the history of the “Office . . . under the United States” drafting convention. Part V will consider the meaning of the phrase “office . . . under the United States,” which appears in the Incompatibility Clause, the Impeachment Disqualification Clause, the Foreign Emoluments Clause, and the Elector Incompatibility Clause. Part VI will turn to the phrase “Office under the Authority of the United States,” which appears in the Ineligibility Clause. Part VII will study the Religious Test Clause, which uses the phrase “Office or Public Trust under the United States.” Part VIII will focus on the phrase “Officer” of “the Government of the United States” in the Necessary and Proper Clause. Part IX will elaborate on the word “Officer,” standing alone and unmodified, in the Succession Clause. Part X will conclude the series.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended!  I'm looking forward to the rest of this mega-article!"