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30 posts from September 2021


Hadley Arkes on Orignialism and Natural Law [Updated]
Michael Ramsey

In the Wall Street Journal, Hadley Arkes: ‘Originalist’ Judges Lose Sight of Truths That Precede Law - Even if the Constitution is silent on abortion, nature and science have a lot to say about it.  From the introduction:

The Supreme Court opens its new term Monday with six nominal conservatives appointed by Republican presidents. But conservatives have been shaken in their confidence that those six will yield majorities on issues that deeply matter. That declining confidence comes along with a serious argument within the conservative family over the nature of “conservative jurisprudence.” Conservatives are united in taking as our coordinates the original meaning of the text of the Constitution. But some of us have argued for “a better originalism,” as opposed what we call the “truncated originalism” that has predominated. We see the latter as detached from the understanding that the American Founders, the true originalists, had of the moral ground of the Constitution and laws they were shaping.

And from later on:

In Roe v. Wade (1973), the lawyers defending the abortion laws of Texas drew on the most updated data from embryology, woven with principled reasoning, to show that the offspring in the womb had been nothing other than human from its first moments, that it was never merely a part of the mother. These lawyers acted, we might say, “naturally”: they sought to show why the laws of Texas were “justified” in casting their protections and displacing the personal freedom of a woman to destroy that small human being who was uniquely vulnerable to her care—and her power.

But none of that rich material made its way into the dissenting opinions by Justices Byron White and William Rehnquist, who were content to rely on the point that abortion was nowhere mentioned in the Constitution. If that is all the court can say—if there is no recognition of a child in the womb as a human life—then why would any state be justified in barring a pregnant woman from being rid of it? And why should she lose that freedom if she travels to another state? But if that offspring is never anything less than a human being, why should the court not engage the power it has used in the past when the protections of the law were withdrawn from a class of human beings and citizens within the separate states? A court that can’t settle its judgment here is simply giving us another chapter in a continuing story of incoherence.

I think Professor Arkes might be saying one of three things here (and elsewhere in pursuing this debate), but I'm not sure which:

(1) The framers had background understandings of morality and natural law that can help give meaning to vague or ambiguous words and phrases in the Constitution.  If that's the claim, I think it's just standard originalism and shouldn't provoke any methodological debate (although of course particular applications of it might be debated).

(2) The framers had background understandings of morality and natural law that, while not directly incorporated into the Constitution, should still be available for judges to draw on in resolving constitutional cases.  Here I think most originalists would disagree.  I can see how this proposition might connect to the older idea of framers' intent, but the Scalia-driven shift to focus on original meaning of the text I think precludes it.  Things that the Framers believed but aren't in the Constitution aren't part of the Constitution's original meaning and so aren't binding (and can't be made binding by judges) on later generations that might want to change them.  The law of the Constitution arises from the words and phrases of the enacted Constitution, not from the framers' moral vision untethered to the Constitution.  

(3) There are principles of morality and natural law that are simply true ("truths that precede law"), irrespective of what the framers thought about them.  I don't see how this is different from a morality-driven version of nonoriginalism. It's not a competing version of originalism; it's just not originalism (as Adrian Vermeule acknowledges).

UPDATE: Ed Whelan responds at NRO: Hadley Arkes’s Straw-Man Argument for a ‘Better Originalism’ on Roe. Consistent with my thoughts, he comments: 

I’m unclear on what role Arkes believes the “moral ground of the Constitution” should have in originalist interpretation of the Constitution. The dominant originalist view, as I understand it, is that separation of powers and federalism are part of that “moral ground,” and that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution. Constitutional provisions, of course, might embed moral understandings, and when they do, justices should interpret those provisions consistent with those understandings. If that is all that Arkes means, then we are on the same page.

From my broader understanding of Arkes’s work, I fear, though, that he thinks it proper for justices to impose their own moral readings on the Constitution. There are suggestions to that effect in his op-ed. He, for example, faults Justice Scalia for “steer[ing] around the questions of moral substance at the heart” of Obergefell v. Hodges. Does Arkes believe that the case against judicial invention of a constitutional right to same-sex marriage depends in any way on making a moral argument against same-sex relationships?

Agreed.  You have to see as two different questions (1) what does the Constitution require and (2) what do justice and morality require -- or you aren't an originalist.


Michael Dorf on Conservative Justices and Originalism
Michael Ramsey

At Dorf on Law, Michael Dorf: What is Justice Breyer Doing?  The post begins by discussing Justice Breyer's recent claims that the Court doesn't act politically.  Toward the end, it shifts to discussing similar claims by Justices Thomas and Barrett:

... [T]he actual voting pattern we see [at the Supreme Court] is also a far cry from what Justices Barrett, Thomas, and Breyer would have us believe. Despite cross-ideological votes in low-stakes cases and occasional surprises in high-stakes cases, ideology is a very reliable predictor of each Justice's overall voting pattern.

What's the explanation for that pattern? Justices Barrett, Thomas, and Breyer acknowledge that Justices have judicial ideologies, but, they say, that's not the same thing as a political ideology. If the Justices divide along what look like party lines, that's just because Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists.

That claim is mostly false. Yes, there are some cases in which Justices can be seen voting their methodological--or at least their legal--druthers rather than on purely partisan or policy grounds. For example, in Gonzales v. Raich, three conservatives voted for a respondent claiming that the application of federal criminal law to state-legal medical marijuana was unconstitutional. And all of the Court's liberals allowed the prosecution. Presumably legal/constitutional views about federal power, not policy views about marijuana, explain those votes. (The two Justices who could be said to have voted their policy views were Scalia and Kennedy, although it is possible to defend those votes as not simply result-driven.)

But note that Raich was not a case of any Justices reaching distasteful policy results on the grounds of their methodological commitments. It's possible, perhaps, to characterize Justice Gorsuch's highly textualist opinion in Bostock v. Clayton County that way, I acknowledge, ... [but] nothing about Bostock contradicts the supposition that all the Justices (with the possible exception of Kavanaugh) voted their policy preferences, with Justice Gorsuch then writing the opinion in a textualist style.

In any event, I'm willing to stipulate that occasionally Justices vote their methodological druthers over their ideological or partisan druthers. However, the overall voting pattern we see--in which ideology is the best predictor of a Justice's vote--and the malleability of the various methodologies, very strongly suggest that the Justices are mostly voting their values and ideological druthers, not their methodological druthers. Even if they're not partisan hacks, they're hardly apolitical.

Perhaps, but I don't think this analysis shows that Justices Barrett et al.'s claim is "mostly false."  Let's stipulate that, as Professor Dorf says, "ideology [meaning political affiliation] is the best predictor of a Justice's vote." That doesn't mean that political affiliation is causing the votes, only that political affiliation is correlated with the votes.  Let's suppose it happens (as I think is probably often the case) that in the leading constitutional disputes of the time (abortion, sexual orientation rights, death penalty, religious freedom, election law, etc.) the stronger originalist arguments favor the conservative political outcome.  That might just be coincidence, or it might be that originalism tends to favor more traditional rather than more innovative legal results.  In either case, if it's true that "Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists," then one would expect to see exactly the pattern Professor Dorf describes.

To make his claim work, Professor Dorf would need to show that conservative Justices consistently disregard the stronger originalist arguments to reach conservative outcomes.  Maybe that's true (Eric Segall thinks it is), but Professor Dorf hasn't shown it here, and I'm skeptical that it can be done.

Of course, a question remains why it's true that "Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists,"  One possibility is that originalism and textualism on balance (though assuredly not in every case) tend to lead to conservative results.  There may be a general tendency (even an unconscious one) to favor a methodology that's generally friendly to one's political affiliation.  But that's very different from saying that political affiliation determines votes in particular cases.


David Schwartz: The Committee of Style and the Federalist Constitution
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted The Committee of Style and the Federalist Constitution (70 Buffalo Law Review (forthcoming 2022)) (52 pages) on SSRN.  Here is the abstract: 

The conventional interpretation of the Constitution assumes that the Committee of Style, which created the final draft of the Constitution, lacked authority to engage with substance; therefore, any arguably substantive changes it did make should be disregarded in favor of earlier draft language found in the Constitutional Convention records. This "Style doctrine" has been embraced by the Supreme Court and several leading constitutional scholars. This article argues that the Style doctrine is historically unfounded and obscures the Constitution's original meaning. The Committee of Style was not prohibited from proposing substantive changes. In any case, most of the revisions proposed by the Committee of Style clarified or reinforced Federalist positions rather than proposing substantive changes. Ultimately, the Style doctrine is an artifact of post-ratification developments tending to disregard elements of the more nationalistic constitutional vision of the Federalist Framers.

I agree, at least to the extent of agreeing that the "Style doctrine" is misplaced.  Just because the Committee of Style wasn't supposed to change the substance doesn't mean it didn't.  But I also think if you are worrying a lot about what Committee wrote what, you are getting too lost in the details of the Convention (details that weren't known to most people a the time, and which are probably ambiguous at best in what they suggest about meaning).


Noah Feldman on Justice Gorsuch and Justice Scalia
Michael Ramsey

At Bloomberg, Noah Feldman (Harvard): Neil Gorsuch Is Channeling the Ghost of Scalia.

Neil Gorsuch has big ambitions.

Every Supreme Court justice wants to do good work, write good opinions and influence the trajectory of American law. Justice Gorsuch wants more: intellectual leadership of the conservative legal movement. That would make him the heir to the late Justice Antonin Scalia, whom he replaced in 2017 after the Senate refused to vote on President Barack Obama’s nomination of Judge Merrick Garland.

Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and opinions and seems to have formed early in his career. He might accomplish it if emerging splits within the close-knit family of conservative legal thinkers break his way.

In practice, this means Gorsuch decides cases a little differently from his colleagues, including the two others appointed by former President Donald Trump, Justices Brett Kavanaugh and Amy Coney Barrett. In every case, no matter how small or large, he takes pains to shape a consistent judicial philosophy that defines the conservative position.

The results so far have been noteworthy. Gorsuch has delivered some extremely conservative opinions on religious liberty and other issues. But he also authored the landmark opinion Bostock v. Clayton County, which conferred workplace anti-discrimination rights on gay and transgender people and was lauded by liberals and condemned by many conservatives.

(Via How Appealing).

UPDATE:  Josh Blackman has some harsh comments at Volokh Conspiracy: Noah Feldman Indulges in Gorsuch and Barrett Fan Fiction -- Feldman imagines some hypothetical battle between Gorsuch's consistency and Barrett's doctrine.


Ethan Leib: Are the Federal Rules of Evidence Unconstitutional?
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) has posted Are the Federal Rules of Evidence Unconstitutional? (American University Law Review, Vol. 71, forthcoming 2022) (51 pages) on SSRN.  Here is the abstract:

This paper explores for the first time how the Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking – for Civil Procedure, for Criminal Procedure, and for Appellate Procedure – the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation doctrine because it allows statutes of the United States to be effectively rewritten by the Supreme Court outside the constraints of bicameralism and presentment, requirements of Article I, Section 7. Especially in light of the Court’s signals in recent terms that it may be seeking to revivify the non-delegation doctrine soon, focusing on the FRE’s formal deficiencies is urgent. Yet functionalists about the separation of powers also need to condemn our current FRE rulemaking process. Functionally, the FRE rulemaking system is constitutionally suspect because it permits the Supreme Court – outside of its Article III authority to hear “cases and controversies” – to repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government – Congress and the Supreme Court – that both have reasonable claims to some authority in the area.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")


Craig Green: A Revolutionary History of American Statehood
Michael Ramsey

Craig Green (Temple University - James E. Beasley School of Law) has posted United/States: A Revolutionary History of American Statehood (Michigan Law Review, Vol. 119, No. 1, 2020) on SSRN.  Here is the abstract: 

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification.

Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.


Saul Cornell: The Right to Regulate Arms in the Era of the Fourteenth Amendment
Michael Ramsey

Recent published in the U.C. Davis Law Review Online: The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America (55 U.C. Davis L. Rev. Online 65 (2021)), by Saul Cornell (Fordham).  From the introduction: 

Scholarship on the history of firearms regulation during Reconstruction has lagged far behind studies of early American gun regulation. This essay collects and analyzes evidence about Reconstruction-era firearms regulation and summarizes these findings. Reconstruction ushered in one of the most intense periods of gun regulation in American history. The Republicans who framed and enacted the Fourteenth Amendment were eager to protect the Second Amendment rights of recently freed persons, including an individual right of self-defense. But Republicans were equally committed to enacting strong racially neutral gun regulations, aimed at reducing interpersonal violence and preserving the peace, a task vital to the success of Reconstruction. Scores of new regulations were enacted and one of the main goals of these laws was to limit the public carry of weapons. These laws were not driven by racial animus, as some gun rights advocates have erroneously claimed, but sought to protect vulnerable populations in the South, including former slaves and Republicans eager to further the aims of Reconstruction.


Founding era fears about the federal government’s threat to state militias ... had largely abated by the time of the Civil War. One of the most important consequences of this shift was the adoption of state arms bearing provisions that were more self-consciously individualistic. What has not drawn much scholarly or judicial notice, though, is the profound change in the structure and language that accompanied the rise of a more individualistic formulation of the right to bear arms after the Civil War.

The inclusion of more individualistic language was only part of the change in the language of these texts. States also included provisions expressly affirming the right to regulate arms. In fact, state after state cast aside the eighteenth century’s dominant formulation of armsbearing, dropping references to the dangers of standing armies and the necessity of civilian control of the military. In place of these ancient fears of tyrannical Stuart monarchs and standing armies, a new fear permeated these texts: gun violence. To borrow a key concept from the common law: a new mischief had emerged, one that required a different remedy. The constitutional danger nineteenth century America faced, one that intensified after the Civil War, was not “lobster-back” redcoats facing off against minutemen, but interpersonal gun violence and the collective terrorist violence perpetuated by groups such as the Ku Klux Klan. In response to these new threats to the peace and safety of the republic, a novel formulation of the right to bear arms emerged in state constitutional law — a new model that forged an indissoluble bond between the right to regulate arms and the right to bear arms.

Powered by this new constitutional framework, uniting arms bearing and regulation into a single principle, states and localities took up the challenge of framing policies that both protected the right to bear arms and the public’s right to enjoy the peace by enacting dozens of new laws regulating nearly every aspect of the right to keep and bear arms.19 Laws regulating the sale of arms; prohibitions on possessing arms in churches, schools, and polling places; bans on concealed carry; general bans on public carry; and new discretionary permit schemes that limited the right of armed travel to situations in which citizens had a good cause to fear attack were among the most important laws adopted during this period.


Bethany Berger: Eliding Original Understanding in Cedar Point Nursery v. Hassid
Michael Ramsey

Bethany Berger (University of Connecticut School of Law) has posted Eliding Original Understanding in Cedar Point Nursery v. Hassid (Yale Journal of Law and the Humanities, forthcoming) (26 pages) on SSRN.  Here is the abstract:

Cedar Point Nursery v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding.

American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries that did not cause economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even rejections of what made the new nation a land of liberty.

Although originalism is a watchword of the Court’s conservative majority, the Court rejected this legal tradition in Cedar Point. The new per se rule does include exceptions that, if read broadly, may limit this departure from original understanding. Time will tell whether the Justices take this second opportunity to make good on their originalist commitments.


Top 20 [sic] Most-Cited Originalism Scholars, 2016-2020 [Corrected]
Michael Ramsey

Inspired by Gregory Sisk (St. Thomas) and Brian Leiter (Chicago), who have been ranking law faculties and individual professors by citation counts, here is a ranking of the top originalist-oriented scholars by citations, for the period 2016-2020.  (It uses Professor Sisk's methodology but the calculations are mine). The number represents the total number of articles in the Westlaw "law reviews and journals" database and published between 2016 and 2020 (inclusive) that cited any of the person's writing.

  1. Jack Balkin (Yale), 1655
  2. Akhil Amar (Yale), 1449
  3. Michael McConnell (Stanford), 1043
  4. Randy Barnett (Georgetown), 977
  5. Lawrence Solum (Virginia), 869
  6. Steven Calabresi (Northwestern), 781
  7. William Baude (Chicago), 761
  8. Gary Lawson (Boston University), 727
  9. Saikrishna Prakash (Virginia), 648
  10. John McGinnis (Northwestern), 641
  11. Ilya Somin (George Mason), 598
  12. Keith Whittington (Princeton - Political Science), 586
  13. Caleb Nelson (Virginia), 551
  14. Michael Paulsen (St. Thomas), 526
  15. Philip Hamburger (Columbia), 518
  16. Josh Blackman (South Texas), 447
  17. Michael Rappaport (San Diego), 396
  18. Stephen Sachs (Harvard), 349
  19. Michael Ramsey (San Diego), 311
  20. John  Harrison (Virginia), 305
  21. (tie) Bradford Clark (George Washington), 229; Kurt Lash (Richmond), 229

Likely I've forgotten some people so this is only a preliminary list.  Please send corrections. 

Further notes: there is some some grey area concerning who should be called an "originalist-oriented scholar"; I've generally gone with self-identification. Also, I have not included professors (like my colleague Larry Alexander) who self-identify as originalists but write mostly in areas unrelated to originalism.

CORRECTION #1:  Jack Balkin has also published as J.M. Balkin.  The initial post did not take that into account.  His count has been adjusted upward by 145 cites.

CORRECTION #2:  The initial post omitted Ilya Somin (George Mason) because I was not sure he considered himself an originalist.  However, he confirms that he is, at minimum, an "originalist-oriented scholar."  So he has been added (at #11).  And now there are 22 scholars in the top 20.

Does Originalism Alone Undermine Roe v. Wade?
Chris Green

A number of observers, notably long-time nonoriginalist Adrian Vermeule, have expressed some puzzlement (or perhaps delight at the opportunity for a reductio ad absurdum) at the idea that Jack Balkin might be an originalist despite arguing that the original meaning of the Fourteenth Amendment is consistent with the result in Roe v. Wade. However, it seems unremarkable to me that the original meaning of the Fourteenth Amendment, when taken in tandem with sufficiently heroic factual assumptions, might support Roe v. Wade or Obergefell v. Hodges.

It is widely recognized that the Fourteenth Amendment contains some sort of provision--disagreement persists about which provision--that broadly and abstractly requires equality in civil rights among similarly-situated American citizens (and perhaps among non-citizens too). I think the provision is the Privileges or Immunities Clause; others think it is the Equal Protection or Due Process Clause, but just about all observers of the original meaning of the Fourteenth Amendment think that somewhere, the Fourteenth Amendment requires equality.

The key question for the result in Obergefell isn't the issue of original meaning so much as whether there is an adequate judicially-cognizable basis for thinking that same-sex couples are similarly situated to opposite-sex couples with respect to the purposes of marriage. Likewise, the most important question in Roe, Casey, and Dobbs isn't the meaning expressed by the text of the Fourteenth Amendment in its original context so much as whether there is an adequate judicially-cognizable basis for thinking that pregnant women are similarly-situated to those who are not pregnant, either (a) because the fetus is not sufficiently important to be protected, i.e., Michael Tooley and Mary Anne Warren's fetal-personhood-denying defenses of abortion are right, or (b) because a pregnant woman's interest in bodily integrity overrides any rights the fetus might have in being protected, or interests the state might have in protecting them, i.e., Judith Thomson's kidnapped-violinist defense of abortion is right.  These latter issues, if resolved in favor of abortion rights, can in tandem with the Fourteenth Amendment's original meaning easily produce the basic result in Roe.

Of course, Roe itself nullifies any Thomson-style argument by saying that fetal personhood if established obviously undermines abortion rights, and expressly declares itself agnostic on the Tooley-Warren-style argument against fetal personhood itself. These add up to agnosticism on the key issues and a mandate for deference to states who disagree with both arguments. Further, I have myself expressed extreme skepticism (see here, here, and here) about the factual predicates necessary for either Obergefell or Roe, especially the idea that those factual predicates could be rendered "clear," as I think judicial review requires. But those who disagree on that latter point can still agree with me about the Fourteenth Amendment's textually-expressed original meaning as such. Put another way, opponents of Roe don't need just originalism in order to win; they also need at least a measure of skepticism (perhaps Roe-supplied skepticism) about the substantive case for abortion rights.