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34 posts from August 2021

08/31/2021

The Oregon Acquisition: Inherent Sovereign Powers and the Commerce Clause [Updated with Comments]
John Vlahoplus

The history of the Oregon acquisition demonstrates the broad early interpretations of the federal government’s inherent sovereign powers and, incidentally, of the commerce clause.  From the early nineteenth century, America claimed ownership of the territory by the inherent power of discovery without relying on any statutory claim or treaty grant.

On May 11, 1792, the American Robert Gray sailed into the fabled River of the West, which had long eluded European explorers, and named it the Columbia after his ship (Charles Carey, A General History of Oregon Prior to 1861, at 93–94).  Gray’s voyage was not governmental; it was a purely private commercial venture (Carey at 90).  In early 1803, before the Louisiana Purchase, President Jefferson proposed an expedition along the Missouri River across French territory and onward to the Pacific in part to develop American competition to the British fur trade and to divert the area’s trade inward to the United States (Carey at 111–12).  Jefferson justified the expedition under the congressional commerce power.  “The interests of commerce place the principal object within the constitutional powers and care of Congress, and that it should incidentally advance the geographical knowledge of our own continent, can not but be an additional gratification.”  By an Act of February 28, 1803, Congress appropriated $2,500 for the expedition “for the purpose of extending the external commerce of the United States.”  Even in early 1803 the commerce clause was interpreted to authorize congressional action to expand commerce, not merely to tell people “[i]f you want to trade or exchange with others, here is how you must go about it.” (see Randy Barnett, The Original Meaning of the Commerce Clause, at 139).

Lewis and Clark reached the mouth of the Columbia River in 1805.  Their expedition paved the way for John Jacob Astor’s Pacific Fur Company to set up private commercial operations in the area beginning in 1811.  In 1813 Astor’s partners learned that war had broken out and that Britain had dispatched forces to assert its sovereignty over the area and oust the Americans.  Astor appealed for U.S. military protection to no avail.  Under duress from the approach of British warships, Astor’s partners sold the prized Fort Astor to a Montreal-based rival at a fraction of its value.  A British warship arrived shortly thereafter, and its captain asserted British sovereignty.  The British flag replaced the American flag over the renamed Fort George. (Carey at 210–15).

In preparing for the negotiations to end the war, President Madison recalled Astor’s plea for help and insisted on the fort’s restoration.  On March 22, 1814, Secretary of State Monroe instructed the American negotiators in terms that made clear the American claim to the Oregon territory and utter rejection of any British rights to it:

Should a treaty be concluded with Great Britain, and a reciprocal restitution of territory be agreed on, you will have it in recollection that the United States had in their possession, at the commencement of the war, a post at the mouth of the river Columbia, which commanded the river, which ought to be comprised in the stipulation, should the possession have been wrested from us during the war.  On no pretext can the British Government set up a claim to territory south of the northern boundary of the United States.  It is not believed that they have any claim whatever to territory on the Pacific ocean.  You will, however, be careful, should a definition of boundary be attempted, not to countenance, in any manner, or in any quarter, a pretension in the British government to territory south of that line.  (here at 731).

The resulting Treaty of Ghent, ratified in 1815, provided that “[a]ll territory, places, and possessions whatsoever, taken by either party from the other, during the war . . . shall be restored without delay . . . .”  In 1817 the United States sent a warship “to the Columbia river with instructions ‘to assert the claim of the United States to the sovereignty of the adjacent country, and especially to reoccupy Astoria, or Fort George.’”  The ship arrived in August 1818, and its captain raised the American flag over the fort on August 19.  The Americans interpreted this as a restitution of sovereign territory that it held before the war.  The British, however, interpreted it as merely returning the property of the fort. (Carey at 216–17).  Britain continued to assert its territorial claims, and shortly afterward the two nations signed the 1818 treaty that allowed joint access to the territory without prejudicing either’s claims in order to avoid another war.

I have not found a single period claim that the United States acquired the Oregon territory under a statutory claim or a treaty grant—and with good reason.  There was no such statute, and neither party believed that the Treaty of Ghent granted sovereignty over Fort George to the United States.  The British denied that the handover involved sovereignty at all, and the United States insisted that it merely restored sovereign territory that the nation owned before the war. 

One can argue which party was right under international law, just as Britain and the United States did until the treaty of 1846 settled the dispute.  But the United States’ public position could only be justified by the federal government’s inherent sovereign powers.  All of the claims described above occurred before Congress extended federal law to the territory and before Spain and Russia ceded their claims to the United States.  The U.S. insisted that it owned the territory before 1814, not that it acquired the territory later nor that some later action retroactively created pre-1814 ownership.

One question remains.  Could the territory have belonged to the United States before 1846 but not been within the United States then?  The case of William C. McKay bears on the answer.  For the following discussion of the case and the congressional response, see here at 415–20. 

The British Hudson’s Bay Company and its predecessor continued to occupy and operate Fort George after the handover in 1818.  McKay was born there in 1824 to a British father who worked for the Hudson’s Bay Company.  Thus McKay was born in the very fort that the United States insisted was its sovereign territory before the War of 1812 and had been restored to it afterward.

The Oregon federal District Court adjudicated a challenge to McKay’s citizenship in 1871.  The court found that the Fourteenth Amendment’s citizenship clause (“All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”) was merely declaratory of the common law rule that applied in the territory during the period of joint access from 1818 to 1846.  The court denied McKay citizenship, however, because he was born to a British father in a British-occupied portion of the territory.

Oregon Senator Corbett introduced a naturalization bill in Congress to reverse the result in the case.  Before he could explain the District Court’s reasoning, other Senators ridiculed the decision as absurd and the bill as unnecessary because the United States had title to the territory during the period and persons born there were subject to U.S. jurisdiction.  Senator Thurman objected to the proposal because he assumed that the District Court judge thought that the United States did not own the territory:

As long as it depends upon the decision of some judge who does not understand what he is about, it is a trifling matter; but for the Congress of the United States to say that we did not own that territory between the Columbia river and the forty-ninth parallel, and that we have to naturalize the people who were born upon it and were subject to our jurisdiction, for the Congress of the United States to say that, is a pretty serious matter.

Senator Casserly objected for the same reason:

I do not wish, unless it is unavoidable, to object to a bill which is desired by the Senator from Oregon, and which respects that State; but the question involved here is whether or not the United States for a series of years set up a false and unfounded title to territory, and whether it shall now be declared by acts of Congress to have been false and unfounded. I would rather have it laid over until some time when the question can be fully discussed.

Oregon Senator Kelly then explained the court’s common law ground for the decision: 

[I]n order to be a citizen of the United States he must have been not only born within the United States, but born within the allegiance of the United States. The child of a British minister born in this city [the District of Columbia] . . . is born in the United States, but he is born without the allegiance of the United States; and so it was there in Oregon.

Senator Trumbull did not think the bill was necessary, but he supported it purely as a favor to Corbett, eliciting laughter from the rest of the Senate.  Congress did not act through a naturalization bill, however.  Instead, it inserted a single sentence in an appropriations bill recognizing that McKay and those similarly situated were born in the United States.  It provided simply “[t]hat all persons born in the district of country formerly known as the Territory of Oregon, and subject to the jurisdiction of the United States at this time, are citizens of the United States in the same manner as if born elsewhere in the United States.”  Congress did not naturalize them like persons born outside of the United States.  It treated them the same as if they had been born elsewhere in the United States rather than in a British-occupied portion of the United States.  At least for purposes of natural born citizenship, the Oregon territory was within the United States even when Britons had equal rights of access and the territory was not destined for statehood.

COMMENT FROM ANDREW HYMAN: This raises the question whether someone born in what later became the State of Oregon (in 1859) ever had U.S. citizenship, if she happened to be dead, or domiciled outside the United States, on 18 May 1872 when the quoted federal statute referred to “this time.”  The answer to this question could be “yes” because of that statute, or because of the Fourteenth Amendment, or because of Article VI of the Adams-Onis Treaty, or because of the old English common law, or some combination of these things.  But maybe the answer is “no.”  (Or maybe it depends whether she was expatriated, or subject to any extradition treaty, as of 1872.)  It’s quite a riddle.

MICHAEL RAMSEY ADDS:  I think the judge in the McKay case had it right.  McKay wasn't "subject to the jurisdiction" of the United States at the time of his birth because, although the U.S. executive claimed Oregon for the United States under international law, Congress had not extended U.S. jurisdiction to Oregon (and didn't do so until 1848).  Moreover, under the rule of Fleming v. Page, Oregon was not "in" the United States in 1824 because no legislative act (treaty or statute) had extended U.S. territory to include Oregon (see my discussion here as to the meaning of "in the United States").  For what it's worth, that accords with basic grade-school U.S. history, which teaches that the U.S. acquired Oregon by treaty in 1846.  Children of U.S. citizens born in Oregon prior to 1846 were U.S. citizens by the applicable naturalization act (providing that children of U.S. citizens born outside the U.S. were citizens); but McKay was not the child of U.S. citizens.  None of this is inconsistent with John Vlahoplus' account of how the U.S. executive claimed Oregon for the U.S. under international law prior to 1846.

08/30/2021

The Limits of Corpus Linguistics for Legal Purposes: A Response to David Weisberg
Karen Sullivan

[Editor's Note:  For this guest post, we welcome Karen Sullivan, Senior Lecturer in Linguistics, University of Queensland, Australia.]

I appreciate David Weisberg’s post Corpus Linguistics and Heller in the The Originalism Blog responding to my Duke Law blog post on the Second Amendment. Weisberg’s post opens up an opportunity to clarify what corpus linguistics can and cannot do for legal interpretation. Weisberg seems misguided on minor points which may be relevant to the Second Amendment, which I note below. More generally, however, I agree with Weisberg that even rare senses of a word or construction cannot at present be ruled out in the legal interpretation of a given instance.

First, I would like to observe that Weisberg’s understanding of external causals apparently relies on the lone instance that I provide in my blog. This seems to have led to the mistaken impression that external causals must involve “the physical world”. Present-Day English examples of external causation include Stay away from the cliff because it’s dangerous or The virus is contagious so hygiene is important. External causation is entirely compatible with “abstract concepts”. I would recommend Jean-Cristophe Verstraete’s 1998 paper “A semiotic model for the description of levels in conjunction: external, internal-modal and internal-speech functional” (Functions of Language 5(2): 179-211), which provides tests for identifying different types of causation, as a starting point.

Second, I’m not surprised that my modern translations of the Second Amendment’s syntax sound unnatural to “a native speaker of American English” such as Weisberg. The premise of my post is that the Second Amendment cannot be read as if it were Present-Day English, so a literal translation of the Amendment is unlikely to roll off the tongue. This is particularly true because I left unchanged vocabulary such as militia and bear arms that were not the topic of the study. Regardless, I suspect that Weisberg was in fact able to process my translations. His criticism of the external reading noted above suggests that he understood that on an external reading, the right guaranteed by the Amendment would apply only when arms were kept and borne for the purpose of a well-organized militia, and not when arms were kept and borne for other purposes.

Returning to Weisberg’s main point, however, I agree that there is no guarantee that an external causal meaning of the Amendment was intended. Linguistics offers many clues as to a speaker’s potential meaning, but these may not be sufficient to narrow the interpretations down to one. However, linguistic information can (1) establish which interpretations are more likely, and (2) determine which interpretations are possible. I argue that the first of these functions will be helpful to legal interpretation only once legal scholars have agreed on a standard approach to probability. The second function, I argue, should be of immediate value.

Whereas the role of probability is well established in linguistics, my impression is that the legal profession lacks a shared understanding of probability. In linguistics and other sciences, measures of statistical significance determine which hypotheses are considered probable enough to be interesting or publishable, for example. In legal studies, there seems to be no predetermined level of probability that will either cause an interpretation to be accepted or rejected. Perhaps it is unrealistic to imagine that the legal community could reach a binding agreement that any interpretation with less than 1% probability would be discarded, for example. It would of course be necessary to also agree on what kind of corpus would be used and how probability would be determined. However, an agreement of this type would make corpus data phenomenally useful. Corpus results would settle debates rather than inflaming them.

Even without a general agreement of this kind, linguistics still offers the second function noted above, in that it can determine which interpretations are possible. If a particular sense of a word or construction has 0% probability based on the largest available corpus – the entire record of English – then I suggest it should be rejected as an interpretation. If legal scholars can accept this modest proposal, then corpus linguistics can immediately serve to eliminate many readings of words and phrases. For example, the Court’s opinion in Heller describes the Second Amendment clause headed by being as having a “clarifying function” for the main clause, a description that best fits an “addition/accompanying circumstance” clause as defined in Bernd Kortmann, Free adjuncts and absolutes in English: Problems of control and interpretation. (London: Routledge, 1991). However, being-clauses that precede a main clause, in all documented forms of English, ceased to permit this function around 1600. My 2018 search of three major English corpora, including over 3,000 instances of being, revealed not a single example of an initial being-clause with this function for almost two hundred years before the Second Amendment was written. (Karen Sullivan, “Being-clauses in historical corpora and the U.S. Second Amendment,” English Studies 99(3): 1-19 (2018)). Of course, there are English documents not covered in these corpora. If an instance of the function were found, then the probability would no longer be 0% and the interpretation would again be on the table. I invite supporters of the “addition/accompanying” interpretation to look through records from the appropriate time period. But if none of us can find even one example of this type, can the Heller interpretation be defended? If legal scholars cannot accept a complete lack of attestation in recorded English as evidence of non-occurrence, then there is no level of probability that they can agree on as convincing, and corpus results will not resolve any questions of interpretation.

Personally, I fail to understand how any claims to originalism can exist without historical corpus linguistics. You have to study a language variety before you can understand it. Nonetheless, a haphazard application of corpus linguistics is surely worse than none at all. I hope that legal scholars are prepared to do the hard yards of establishing a shared framework for the construal of probabilities. If not, then I agree with Weisberg that interpretations cannot be rejected on the basis of rarity.

08/29/2021

Jorge Contreras: 'Not' Madison
Michael Ramsey

Jorge L. Contreras (University of Utah - S.J. Quinney College of Law) has posted 'Not' Madison (CPI Antitrust Chron, Jul. 2021) (10 pages) on SSRN.  Here is the abstract:

This essay challenges the claim that President James Madison, the namesake of the Trump Administration’s “New Madison” Approach to Antitrust and Intellectual Property Law, was an advocate for strong patent rights unconstrained by the limitations of antitrust law. While Madison supported the authority of Congress to grant patents to inventors, this view was widely shared by his contemporaries. Rather than advocating for strong patent rights, Madison’s writings reveal that he was concerned about the “exorbitant gains” that patents and other monopolies could confer upon their holders, while at the same time preventing individuals from exercising their trades. Most importantly, Madison formulated his views a full century before the enactment of the antitrust laws, in an economic environment in which private firms could not acquire market power absent governmentally-issued monopolies. This suggests that Madison is an inapt namesake for the policies of a federal agency that is charged with enforcing the antitrust laws today. For all of these reasons, the “New Madison” approach is plainly “Not” Madison, and the continued misuse of this label distorts the views of a major figure in American Constitutional history.

08/28/2021

Frederick Schauer: Unoriginal Textualism
Michael Ramsey

Frederick Schauer (University of Virginia School of Law) has posted Unoriginal Textualism (George Washington Law Review, Vol. 90, 2022) (58 pages) on SSRN.  Here is the abstract:

The burgeoning debates about constitutional interpretation show no signs of abating. With surprisingly few exceptions, however, those debates involve a contrast between textualism understood as some form of originalism, on the one hand, and various varieties of less textually focused living constitutionalism, on the other. In conflating textualism with originalism, however, the existing debates ignore the possibility of a non-originalist textualism – a textualism tethered not to original intent and not to original public meaning but, instead, to contemporary public meaning – public meaning now. This article explains the plausibility of just such an “unoriginal” textualism and argues that it might serve the guidance and constraint functions of a constitution better than any of the alternatives now on offer.

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

UPDATE:  Also: It's the Download of the Week.

08/27/2021

Holden Tanner on Conservative Judging
Michael Ramsey

At Law & Liberty, Holden Tanner (clerk, Supreme Court of Texas): How to Recover Conservative Judging.  From the introduction:

Conservative jurisprudence is at a crossroads.

One path wanders from our history and traditions. Our originalist arguments beat back living constitutionalism, but they have led us away from the core method of American legal reasoning. They have distanced legal conservativism from the well-worn ways of American jurisprudence. By brandishing the centrality of text, conservative jurists sought to constrict the aggrandizement of the New Deal Court and weed out the inventions of the Warren Court. But these victories track a collision course with our abiding philosophical enemy—legal realism. We tacitly accepted the core tenets of that modern heresy: that judges make law, that they do so purely on policy grounds, and that only written law can constrain them. Like a puzzle piece that no longer fit, we cast aside the common law tradition.

It doesn’t have to be this way. There is another path, one paved with traditionalism, economics, constitutionalism, and moral reasoning. It leads to a holistic conservative jurisprudence. Along the way, legal conservatives will encounter pitfalls and obstacles: questions about the judicial role, the separation of powers, and morality. But arriving at a jurisprudence for the common good—not the meandering esoterica of legal elites—means starting back towards the right direction.

This Feature begins by discussing four movements in conservative legal thought: traditionalism, law and economics, constitutionalism, and natural law. It then asks why some have fallen by the wayside. It picks up on a trail we’ve forgotten: our traditions of common law reasoning, in which conservative legal philosophy can flourish. It closes with a roadmap for nationwide legal reform that begins with our state courts.

And from later on:

In his 1995 Tanner Lectures, Justice Scalia tore apart the legal profession. His complaint? Students of the common law case method were utterly unequipped to operate in a system of legislation. While the Justice was “content to leave the common law, and the process of developing the common law, where it is,” he questioned whether “the attitude of the common-law judge” was fit for the work of federal and state judges. He viewed the common law as a way to let expert jurists, rather than democratic legislatures, craft the law as they saw fit; he conceded that legal realism had conquered the common law courts.

He then skewered American jurists for lacking a coherent theory for interpreting texts. For Justice Scalia, applying common law methods to written law raised constitutional concerns. A distinct theory was needed. He led the profession out from its ineptitude with his originalist and textualist philosophy.

But Scalia’s arguments went too far, eroding unwritten law and classical legal reasoning. From the premises that (1) common law was merely judge-made law and (2) legislators alone should make law, it follows that common-law judging in a system of separated powers must go. Justice Scalia’s triumph was establishing the truth of the latter premise. His fatal flaw was tacitly accepting the former. Scalia, like many others, ceded the common law tradition entirely to legal realism.

The result has been a wholesale reorientation of legal conservatism towards a positivist jurisprudence.

Descriptively I think this is interesting and correct, but I tend to side (unsurprisingly) with Scalia.

And from the conclusion:

[W]e must revive the traditional understanding of common law reasoning that separates our view from that of legal realism.

We have been woefully misled by the canard of “judge-made law.” Rather than viewing common law as a body of rules, it must be understood as a method of legal reasoning. A common law court does not simply make up law. We should instead see that they establish law from the general legal rules already made available through reason and tradition. To “establish” does not mean to create ex nihilo but rather to take what is general and amorphous and render it concrete. Courts establish law by giving it a concrete shape or definitive application. This is true even of judicial decisions applying written law. Establishing doctrine and determining applications does not make the judicial decision itself a source of law.

A simple model of common law reasoning is this: Human reason grasps moral imperatives that provide primary rules of human conduct. These moral rules—requiring us to refrain from harming others or to keep our promises—can be understood as binding legal rules, even though they are unwritten. From a positivist perspective, this requires only a rule of recognition designating them as such. From a natural law perspective, all legal rules are derivative of the moral force of these primary rules. Even the obligation to obey positive law flows from them.

But these rules are relatively indeterminate; people need more specific guidance. The judge, in our system, discerns these moral principles and then gives them a definite shape by reference to custom, which informs the reasonable expectations of the parties. Over time, the case law itself forms customs that courts might reasonably follow. In a hierarchical system, higher courts bind lower courts in their determinations of how custom concretizes the requirements of morality. Reason and tradition thus ground the common law in pre-existing legal obligations.

The choices that judges make, while not fully mechanical, are meaningfully constrained by their limited role as adjudicators of concrete disputes. As courts develop standards of evidence, burdens of proof, procedures for litigation, and necessary elements of claims, they establish more clearly what a court ought to require before finding a violation of those pre-existing moral obligations. Just as a well-reasoned textualist opinion clarifies the application of a statute and provides a doctrinal test for its application, a common law opinion elucidates the requirements of morality and provides administrable rules for deciding future cases.

08/26/2021

Seth Barrett Tillman on the Voting Power of the Senate President Pro Tempore [Updated with Comment from Andrew Hyman]
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Tillman on Volokh on the Senate President Pro Tempore (commenting on this post by Eugene Volokh, noted here).  From the introduction:

On August 23, 2021, on the Volokh Conspiracy, Professor Eugene Volokh wrote:

Now I suppose one could argue that the Senate President pro tempore would be able to cast two votes, when the VP is Acting President of the U.S.: One in his capacity as Senator, and one in his capacity as Vice-Vice-President. But apparently that has never been the understanding.

The issue of multiple voting by a Senate President Pro Tempore has certainly been discussed over the years. The most relevant Constitution text is not entirely clear on this point.

U.S. Const. Article I, Section 3, Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they [the senators] be equally divided.

U.S. Const. Article I, Section 3, Clause 5: The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

There are two ways to read Clause 4:

The Vice President of the United States shall be President of the Senate, but [the Vice President] shall have no Vote, unless they [the senators] be equally divided.

The Vice President of the United States shall be President of the Senate, but [the President of the Senate] shall have no Vote, unless they [the senators] be equally divided.

In other words, does the ostensible grant of a vote on equal division apply exclusively to Vice Presidents (or to Vice Presidents when acting as Senate President), or does it apply more generally to all Senate Presidents, including Senate Presidents Pro Tempore? ...

Followed by some surprising history (to me anyway).

COMMENT FROM ANDREW HYMAN:  There are other pertinent clauses aside from Article I, Section 3.  For example, there is this clause in Article V:

[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Allowing the President Pro Tem to have two votes would mean that his state has a total of three votes, thereby depriving all the other states of equal suffrage.  And there is also this clause in the Seventeenth Amendment (which was copied from the original unamended Constitution).

[E]ach Senator shall have one Vote.

These two clauses explain why the President Pro Tem of the U.S. Senate has never voted twice on any motion or measure.

08/25/2021

Lament Hilts on Cass Sunstein and the Duck-Rabbit Problem
Michael Ramsey

Lament Hilts (independent) has posted Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Very Short Response to Professor Cass Sunstein (and Others) (9 pages) on SSRN.  Here is the abstract:

I amend one word from Professor Sunstein’s conclusion.

It is tempting to think that in the kinds of cases [and texts] that are of concern here, non-textualism is a kind of lie. It might be. But it might also be an honest mistake, a matter of sincerely thinking that you are “seeing that” [which all others see or that which is there to be objectively seen]” when you are actually “seeing as” [which is seeing only one meaning among several potential meanings which others see].” Still, it is a serious problem if a judge does not know that she is seeing as. If she is, in fact, seeing as, she should explain why that is the right way to see, and if she thinks that she is seeing that, she might see no need to offer an explanation.

To illustrate my point, I refer to how non-textualists have developed Hamilton’s Federalist No. 77 in relation to the doctrinal debate on the unitary theory of the executive and the scope of the President’s removal power. My purpose in doing so is not to settle that substantive debate—a matter about which I have no published or settled views. Rather my purpose is methodological: it is to illustrate how non-textualist commentators and their readers “see” and how they choose to support their understanding of what they “see” with historical and other legal materials.

08/24/2021

Eugene Volokh on the Vice President as Acting President
Michael Ramsey

At Volokh Conspiracy, Eugene Volokh: If VP Becomes Acting President When President Is Temporarily Disabled, What Happens to VP's Tiebreaker Vote? From the introduction: 

The Vice President can break a tie in the Senate, which is especially important when the Senate is split 50-50, as it is now. Say a President gets ill enough that he recognizes that he's becoming temporarily incapacitated (or the Vice-President and the majority of the Cabinet so recognizes, for instance if the incapacitation comes on suddenly). The VP would become Acting President; but would she still be able to cast the tie-breaking vote in the Senate?

Professor Volokh says no, mostly based on the text, which says (Art. I, Sec. 3): 

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

Thus (it seems) the VP ceases to be President of the Senate (and presumably loses the tiebreaking vote associated with that office) when the VP assumes the office of President of the United States.

Does the 25th Amendment (which provides for the VP temporarily taking over the President's duties) change the assessment?  One might argue that it does.  The Amendment says that in case of disability, the "powers and duties [of the President] shall be discharged by the Vice President as Acting President."  Perhaps, then, the VP is not in this situation "exercis[ing] the Office of President of the United States" (as the VP would do if the President died and the VP succeeded to the office of President) but rather is simply exercising the President's "powers and duties" while retaining the office of Vice President (and thus also remaining President of the Senate).

Professor Volokh rejects this reading mostly on the basis of the legislative history, which contains this exchange: 

Mr. SALTONSTALL… Under the Constitution, the Vice President is President of the Senate, but if he became Acting President under this amendment, he would no longer be President of the Senate, but the President pro tempore would become the President of the Senate. Is that correct?

Mr. BAYH [a principal author of the amendment]. That is correct.

Mr. SALTONSTALL. The Vice President would become Acting President and thereby lose his title as President of the Senate. Is that correct?

Mr. BAYH. That is correct.

Is that enough? Not if the language were clear the other way, I'd say, but here it's not clear the other way.  Would Justice Scalia's legendary aversion to legislative history in statutory interpretation carry over to constitutional interpretation in this setting?  It seems like it would.  But not all originalists would agree.  The exchange seems somewhat persuasive to me, especially if there isn't any legislative history or other discussion pointing the other way.  Not because we ultimately care about the intent of Bayh and Saltonstall, but because the way they read the language is (somewhat) indicative of its ordinary meaning.

Still, I don't think it's as clear a case as Professor Volokh does.

08/23/2021

Mark W. Smith & Dan Peterson: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation
Michael Ramsey

Mark W. Smith (Visiting Fellow in Pharmaceutical Public Policy and Law, University of Oxford) and Dan M. Peterson (independent) have posted Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (141 pages) on SSRN.  Here is the abstract:

Some scholars, judges, and advocates have recently urged that legal corpus linguistics, a methodology that uses computerized searches of large volumes of texts known as “corpora,” can determine the original meaning of constitutional provisions. More particularly, certain of these advocates have argued that corpus linguistics searches of Founding era corpora prove that the Second Amendment right to keep and bear arms protects only a collective, militia right and not an individual, private right to arms, contrary to the Supreme Court’s interpretation of that amendment in District of Columbia v. Heller, 554 U.S 570 (2008).

In this article, we argue that relying on corpus linguistics to determine the meaning of the Second Amendment suffers from severe conceptual and practical difficulties. One of the most fundamental flaws concerns the central methodological assumption of corpus linguistics—the “frequency hypothesis”—which posits that the most frequent meaning of a word or phrase returned by a corpus search should be the meaning adopted for purposes of constitutional interpretation. Even if the phrase “bear arms” most frequently appears in a military context, that does not mean that the constitutional language excludes an individual right to bear arms for self-defense and other private purposes. Military and militia references were more likely to appear in public discussions of the right to bear arms simply because they were more “newsworthy” than the mundane acts of ordinary people carrying a firearm for hunting or defense, which would rarely be recorded. Contemporary examples, including references by the Founders themselves, show that the right to “bear arms” included protection of an individual right as well as furthering a well-regulated militia.

In addition, corpus linguistics suffers from serious problems concerning the composition of the corpora, which are biased in favor of elite language usage and are critically incomplete, missing some of the key texts that historians and legal scholars have long relied upon in discerning the Second Amendment’s meaning. Use of legal corpus linguistics also raises serious practical difficulties in actual constitutional litigation, including the absence of the usual safeguards applicable to expert or “scientific” evidence.

In the end, the counting of words resulting from a corpus search cannot overcome the history and traditions at the time of the Founding that allowed free carry and use of firearms, and the core conception by the Founders that self-protection with arms is a pre-existing right that cannot be taken away from the individual by any act of civil society.

08/22/2021

Acquisition of Oregon by Inherent Sovereign Powers:  A Reply to Andrew Hyman
John Vlahoplus

Andrew Hyman’s recent post mistakes the timing and manner of the U.S. acquisition of the Oregon territory.  As the State Department explains, the United States claimed the territory “based on the explorations of Lewis and Clark” (who reached the mouth of the Columbia River in 1805) “and on the establishment of trading posts set up by John Jacob Astor’s Pacific Fur Company” (which began in 1811).  Those are grounds from the inherent powers of a sovereign.

The 1818 convention with Great Britain did not affect the American title.  The convention expressly provided “that this agreement is not to be construed to the prejudice of any claim which either of the two high contracting parties may have to any part of the said country.”  The United States continued to claim title to the territory, and a federal District Court later ruled that the Fourteenth Amendment’s citizenship clause (“All persons born . . . in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”) was merely declaratory of the common law rule that already applied in the territory at the 1824 birth of the plaintiff in the case.  All of the U.S. senators who discussed the case on the floor of the Senate, including Lyman Trumbull, insisted that the United States owned the territory throughout the period that the 1818 convention gave Britons a right of access.  From the American perspective, the United States did not acquire the land south of the forty ninth parallel under the 1846 convention with Great Britain but rather ceded the land north of it.  The United States gave up on “Fifty-four forty or fight.”

The Oregon Country was unincorporated for decades under the later invented standards of the Insular Cases.  Congress refused to exercise its jurisdiction in the territory.  It discouraged Americans from emigrating there by refusing to promise statehood.  Many members of Congress expected the territory to become its own republic, a U.S. military post or naval base, a home for non-white North Americans, or to be used for some other purposes besides statehood.  As Senator Dickerson stated in 1825, “is this territory of Oregon ever to become a state, a member of this Union? Never. The Union is already too extensive—and we must make three or four new states from the territories already formed.”  Senator Dickerson went further in defending the refusal to extend federal law to the territory.  His words have special poignancy for residents of our remaining territories:  “As yet we have extended our laws to no territories, but such as were or are to become states of the Union. We have not adopted a system of colonization, and it is to be hoped we never shall. Oregon can never be one of the United States. If we extend our laws to it, we must consider it as a colony.”

For a more complete discussion of the territory’s acquisition and birthright citizenship there, including the District Court judge’s unique application of the common law rule to children born there to British fathers, see here.

MICHAEL RAMSEY adds: If I'm understanding this right (and I'm no expert on Oregon), there's actually not an issue of Congress exceeding its enumerated powers because Congress didn't act with respect to Oregon until 1848, at which point it was both implementing the 1846 treaty (as I would put it, see here) and (as Andrew Hyman says) regulating incidental to its power to admit new states. Rather, the issue is whether the President exceeded his constitutional powers (or acted pursuant to inherent sovereign power) in claiming Oregon for the United States prior to 1818.  My view is that the President in asserting a claim to territory under international law exercises the executive power over foreign affairs vested in the President by Article II, Section I (a delegated power, not an inherent sovereign power).  But the executive power does not give the President lawmaking power with respect to territory such as Oregon, and my understanding is that the U.S. properly didn't exercise lawmaking power in Oregon until Congress passed the 1848 Act.

ANDREW HYMAN adds:  We haven’t mentioned the Adams-Onis Treaty (1819) which specified that the King of Spain “cedes to the said United States all his rights, claims, and pretensions to any territories east and north of the said line” which included the Oregon Country in addition to Florida.  Conversely, President Monroe gave this pledge in Article VI of the treaty:

The inhabitants of the territories which His Catholic Majesty cedes to the United States, by this treaty, shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of all the privileges, rights, and immunities of the citizens of the United States.

That looks like a pledge of future statehood, notwithstanding the great distance between the ceded territories and the nation’s capital, although one might argue that this pledge only applied to Florida.

In any event, there was no federal legislation over the Oregon Country before Congress manifested its goal of statehood in 1848.  Legislators like Senator Mahlon Dickerson, who in 1825 opposed future statehood for Oregon, successfully opposed federal legislation as to Oregon because any such legislation would treat Oregon like a permanent colony and thus would not be needful.  Taking that position literally would preclude even naturalization statutes applicable to the Oregon Country.