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17 posts from October 2021


Gregory Ablavsky: The Lost History of the Private Land Claims
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted Getting Public Rights Wrong: The Lost History of the Private Land Claims (Stanford Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

Black-letter constitutional law distinguishes “private rights,” which must be litigated before an Article III tribunal, from “public rights,” which Congress may resolve through administrative adjudication. Yet both the Supreme Court and scholars have long struggled to define this distinction. Recently, many have turned to history for clarity, especially to Murray’s Lessee, the 1856 case that inaugurated the public rights doctrine. As part of a broader critique of the administrative state, Justices and scholars have sought to use this history to cabin the scope of constitutionally permissible administrative adjudication.

This Article intervenes in this debate by suggesting that administrative adjudication had a much broader scope in the nineteenth century than previously thought. It examines the sole example of public rights cited in Murray’s Lessee: preexisting property rights held by the European settlers in territories ceded to the United States. These “private land claims,” though almost entirely neglected by scholars of public rights today, were the subject of an enormous amount of nineteenth-century law and jurisprudence. Both the antebellum Congress and Supreme Court concluded that Congress enjoyed considerable discretion over the resolution of these claims, including through binding and preclusive decisions by non-Article III tribunals. The Court reached this conclusion, I suggest, based on a dichotomy between “perfect” title—where complete legal title had passed to the claimant—and “imperfect” title, where some further government act was required before the claimant enjoyed “complete” ownership. But this framework did not mean that private land claims, whether perfect or imperfect, were considered “privileges,” a category that other scholars have used to explain the public rights doctrine. Rather, the era’s caselaw and jurisprudence described both perfect and imperfect titles as vested property rights that the government could not take away. Moreover, by century’s end, the distinction between perfect and imperfect titles had collapsed in favor of a broad and durable embrace of federal power.

This history does not offer a new bright-line test to distinguish public from private rights. But it does challenge influential prior accounts in caselaw and scholarship by suggesting that, from the very beginning, the category of “public rights” encompassed vested rights to property that were routinely adjudicated before federal administrative tribunals.

(Via Dan Ernst at Legal History Blog.)


More from Stephen Halbrook on the Historical Right to Bear Arms
Michael Ramsey

Stephen Halbrook has wrapped up his guest-posting at Volokh Conspiracy with two additional posts:

A Surprise Amicus Brief in the Challenge to New York's Gun Carry Ban (a sharp commentary on Judge Michael Luttig's brief in support of the state)

The Right to Bear Arms in Historical Context

From the second post:

The Boston Massacre was an important event leading up to the Revolutionary War. It also provides important evidence about the scope of the right to keep and bear arms. The Massacre was a clash between British soldiers and colonists in downtown Boston that resulted in the death of five colonists. The British soldiers were tried for murder, and they were defended by one of the most prominent and accomplished lawyers in America—future President John Adams.

A key issue was whether the soldiers acted in self-defense against the assembled colonists, many of whom were armed with clubs. In making his plea to the jury, Adams did not assert that the colonists committed an act of unlawful provocation merely by carrying arms. Instead, he conceded that "here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to." 3 Adams, Legal Papers 248 (1965).

And from later on:

Opponents of an individual right to bear arms often seek to engage the debate at a more abstract level that fails sufficiently to grapple with the details of historical events. A particularly egregious example of this is the attempt by some researchers to use a "corpus linguistics" analysis to relitigate Heller and show that the Second Amendment does not protect an individual right to bear arms. These analysts run phrases like "bear arms" through databases containing a large number of Founding-era texts, categorize the hits into various senses, and then tally up the results.

There are a whole host of conceptual and practical problems with this sort of analysis, which others have explored in depth. See, for example, Mark W. Smith & Dan Peterson, Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (forthcoming Drake L. Rev. Spring 2022), as well as the amicus brief of the NRA Civil Rights Defense Fund. But one key problem with it is that an analysis that simply searches databases and counts up hits fails to engage with the contextual information necessary to conduct a meaningful inquiry into the meaning of a constitutional right. This is starkly illustrated by the fact that while the overly general term "bear arms" may be used most often in a military sense, the correct search term is "the right to bear arms," and it can only refer to an individual liberty.




Lael Weis: Originalism and Constitutional Amendment
Michael Ramsey

Lael K. Weis (Melbourne Law School) has posted Originalism and Constitutional Amendment (Chapman Law Review, forthcoming) (68 pages) on SSRN.  Here is the abstract:

This article examines a problem that constitutional amendment uniquely poses for originalism, namely: how should changes to a constitution’s text that enact a new set of understandings be reconciled with the understandings of the constitution’s framers? This issue poses a significant challenge for originalism, and yet it has been overlooked by scholarship to date. This article is a first effort to tackle this issue. It develops an originalist approach to amendment that identifies which amendments pose the problem and that provides a method for addressing it. In developing this approach, the article’s analysis makes two significant contributions to the evaluation and understanding of originalism. First, it provides a critical missing component of originalist interpretive theory that is needed for its practical application. As the article’s central examples demonstrate, constitutional amendment poses a real challenge for originalism and not a merely hypothetical one—even for old constitutions that have proven difficult to amend. Second, by putting originalism in conversation with current debates about constitutional amendment, the article’s analysis draws attention to implications for issues concerning the scope of the amending power. The originalist approach that it develops places interpretive constraints on the amending power, requiring amenders who wish to override original understanding to do so clearly. This invites comparison with “implicit unamendability” doctrines, a controversial but increasingly common set of practices whereby courts imply strict constraints on the amending power in order to prevent its abuse. This comparison suggests that originalism may provide an attractive—albeit more limited—alternative for those who are concerned about abusive amendment but have reservations about implicit unamendability. In making these two contributions, the article thus helps resituate and reinvigorate interest in originalism, demonstrating that the theory holds broad interest for constitutional theory and practice beyond narrow and technical scholarly debates between originalists and their critics.


Stephen Halbrook on the Historical Right to Bear Arms
Michael Ramsey

At Volokh Conspiracy, Stephen Halbrook is guest-blogging about the historical aspects of the briefing in New York State Rifle & Pistol Association v. Bruen, the Supreme Court's pending public carry case. Here are his initial posts:

New York's Futile Search for Historical Precedents for its Handgun Carry Restrictions

Does a Medieval English Statute Supersede the Second Amendment?

Don't Know Much About History

From the first post:

In my recent book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?, I extensively survey the historical evidence and conclude that the founding generation understood the right to bear arms to be a genuine right not subject to the types of limitations New York and other "may issue" states place upon it. Nothing that New York and its amici have said undermines that conclusion. Indeed, my book anticipates and addresses most if not all of the arguments made and primary historical sources cited by New York and its amici.

In this series, I plan to address several key points of contention among the parties about what history shows about the right to carry, including the Statute of Northampton and its American analogues and the so-called "Massachusetts model" of regulating individuals carrying firearms in a threatening manner through a surety system. I also will address the historical arguments made in the amicus brief filed by former Judge Michael Luttig, who surprisingly to many supports the State of New York in this case.

At the outset, however, I will begin by emphasizing the overwhelming evidence that during the Founding generation the carrying of firearms in public was a common and unremarkable practice. This evidence is impossible to square with the argument that public carry was heavily restricted and in most cases criminal at the Founding, and it therefore casts serious doubt on New York's arguments to the contrary before the details of those arguments are even assessed.


Eric Segall on the Internet, Free Speech, and Originalism [with my comments] [Updated]
Michael Ramsey

At Dorf on Law, Eric Segall: Social Media Regulation, The Limits of Originalism, and the Supreme Court's Obsession with Free Speech. From the core of the argument:

... [I]t should be obvious to everyone that the worlds of 1791 and 1868, or more specifically, the first amendment's original meaning, simply are of no use to judges or scholars trying to figure out what limits the Constitution places on government regulation of the internet. Unfortunately, this reality is often twisted by self-professed originalists and at the most visible of times. For example, Professor Larry Solum was the only legal scholar asked to testify about originalism at the confirmation hearing of then Judge Neil Gorsuch, and he said the following: 

There was no Internet when the First Amendment was written in 1791. Today, Americans can speak over the Internet. The application of the freedom of speech to a speech broadcast over the Internet is very simple. Speech is speech, whether it is in person, amplified by speakers, or transmitted over the Internet. The Constitution was written in language that can be applied to new circumstances. There was no state of Nebraska when the Constitution was ratified, but there is no difficulty in applying the constitutional provision that grants each state two Senators to Nebraska.

Similarly, [Justice Scalia] once said: "Of course [constitutional] provisions have to be applied to new phenomena like the radio and the Internet....It is essential to originalism, as it is not to so-called 'evolutionary constitutional jurisprudence,' to know the original meaning of constitutional provisions." And Justice Gorsuch has written that as "originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet."

Whom are these people talking to? Of course the first amendment applies to new forms of speech and expression, just as evolved methods of torture implicate the eighth amendment and electronic surveillance triggers the fourth amendment. But those banal observations do not address whether the alleged original meaning of the first amendment can help us sort out hard issues regarding government regulation of Facebook or Twitter. It cannot, and we shouldn't pretend that it can. ... The internet changed the world in ways no one could have imagined a century or two centuries ago. The ability of one person sitting at home to reach millions of people represents a new kind of communication that brings with it unexpected benefits and harms. The internet can mobilize both peaceful and violent public demonstrations in ways unimaginable not that long ago. Social media can inspire and defame folks all over the world, affect elections with both true and fake news, and mislead and inform people with a deluge of information unfathomable to both the public and legal experts in times past. 

There has always been a tension between free speech values and other important concerns that at times outweigh speech values (think perjury, bribery, and libel laws) but the exponential growth and reach of the internet compared to the forms of communication available in 1791 or 1868 is not a difference in degree but a difference in kind. 

No historical inquiry can tell us whether we should hold social media companies liable for speech on their platforms or whether the government can require them not to censor people they ban from their websites. Saying the first amendment places some limits on internet regulation is both obviously true and totally unhelpful when it comes to judges deciding real cases on the ground or legislators trying in good faith to act constitutionally when balancing free expression with other harms. Historical inquiry in this area of constitutional law simply cannot help, no matter what type of originalism bridge originalists are trying to sell.

This is a serious criticism, but I think it overstates.  True, the original meaning of the First Amendment is often not easy to identify.  But once identified, its application to the internet should not be so daunting.  Professor Segall doesn't give specific examples so it's hard to engage his post directly.  But here are a few counterexamples:

It's fairly well accepted that the First Amendment's original meaning did not allow the government to ban newspapers from publishing criticism of government policies.  If that's right, the modern application of the original meaning seems straightforward: the government also cannot ban social media platforms from publishing criticism of government policies.  The original meaning applies equally to old technologies and new technologies, as Solum, Scalia and Gorsuch say.  Similarly, it seems clear that the First Amendment's original meaning allowed the government to punish newspapers for publishing libelous content.  So similarly, the First Amendment's original meaning allows (but of course doesn't require) the government to punish social media platforms for publishing libelous content.  I don't see why Professor Segall has a problem with this.

Professor Segall says that the world of the internet is fundamentally different from the eighteenth century.  True.  He further says (or implies) that therefore we need different rules.  That may be true.  But it does not prove that the old rules cannot be applied to social media; it only means that applying the old rules to social media may yield results he doesn't like.  The originalist response is simple: if the old rules yield bad results due to changed circumstances, change the rules (using appropriate procedures, which in this case would be a constitutional amendment if one thinks the original meaning of the First Amendment is too restrictive in the internet age).

I readily concede two points: (1) the original meaning of the First Amendment is not always clear (though sometimes it is); and (2) the modern world of social media is very different from the eighteenth century and so different rules may be more appropriate.  But neither of these points shows that the emergence of the the modern social media world means the First Amendment's original meaning (to the extent we can understand it) cannot be applied.

UPDATE:  Eric Segall replies:

Thanks to Mike for posting and discussing my piece. The original meaning of the first amendment, when it comes to judicially enforceable rights, is extremely narrow. Mostly, the founders were concerned with prior restraints but no originalist I know takes that position. Moreover, newspapers may be like Facebook but then they may not be like Facebook. The reach and potential harms and benefits of world-wide social media platforms have little analogies at the Founding. The key point is judges can (and will) pick and choose what similarities and difference are relevant, and they have virtually unlimited discretion to do so.


Matthew Seligman: The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes
Michael Ramsey

Matthew Seligman (Yale Law School) has posted The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes (33 pages) on SSRN.  Here is the abstract:

This Essay explains the errors in the theory advanced by John Eastman in a memorandum presented to President Donald Trump and Vice President Mike Pence which claimed that Pence had the unilateral authority to reject electoral votes when Congress convened on January 6, 2021. That Unilateral Rejection Power theory is fatally flawed in four respects. First, it rests on a misreading of the critical phrase in the Twelfth Amendment that does not follow from its text. If anything, the text indicates the Unilateral Rejection Power is incorrect. Second, it draws on an erroneous history of the Vice President’s role in the electoral counts of the 1796 and 1800 presidential elections. Third, it ignores the dispositive drafting history of the Twelfth Amendment, which definitively demonstrates that both chambers of Congress understood Article II, section 1, clause 3 to assign to Congress rather than the President of the Senate the power to count votes and decide disputes relating to that count. Congress drafted the Twelfth Amendment using precisely the same words regarding the process of counting electoral votes, thus incorporating that settled understanding. Finally, it defies reason that the Founding generation, who had just fought the Revolutionary War to overthrow a monarch to establish a representative democracy, would create a constitution that vested a single official with the legal authority to retain power for a lifetime.

This Essay offers these legal arguments in full view of the more fundamental point: that the Unilateral Rejection Power theory is a dangerous view that undercuts the basic principles of American democracy. It may seem that nothing more than that needs to be said—and that even engaging in rigorous legal argument with such a radically antidemocratic interpretation of the Constitution legitimizes a view that should simply be shunned. The tragic reality, however, is that radically antidemocratic legal views like the Unilateral Rejection Power theory have perilous influence with a powerful faction in the American political system and thus present an immense danger if not decisively rebutted. For that reason, I believe it is critical to expose that the Unilateral Rejection Power theory is not only gravely morally wrong—it is, beyond any doubt, legally wrong as well.

Sounds right to me.

But note that this is entirely an originalist argument.  Its four central authorities are (1) text; (2) early post-ratification history; (3) drafting history of the 12th Amendment; and (4) inferences about framers' intent.  These are presented as authoritative, not just of original meaning, but of modern meaning.

Doesn't this show that originalism can definitively resolve some modern debates?  Or is Professor Seligman overclaiming ("beyond any doubt"), with the Unilateral Rejection Power theory (as he calls it) instead being fairly debatable as an original matter? I'd like to hear what originalism skeptics think about this one.


James Fox: The Constitution of Black Abolitionism
Michael Ramsey

James W. Fox (Stetson University - College of Law) has posted The Constitution of Black Abolitionism: Re-Framing the Second Founding (University of Pennsylvania Journal of Constitutional Law, Vol. 23, No. 2, 2021) (84 pages) on SSRN.  Here is the abstract: 

Eric Foner has observed that historians of the Thirteenth Amendment have struggled “to find ways to get the voice of African Americans into discussions of the Amendment’s original meaning, scope, and limitation.” This article is part of a project to answer Professor Foner’s challenge to recover nineteenth-century African American constitutionalism. While there are many sources for accessing the views of African American writers, speakers, and activists, this article focuses on the rich contributions of the Black Convention Movement. Despite its importance in helping to set the terms for Reconstruction, the Black Convention Movement and the Black public sphere more generally have been under-utilized and under-studied as a part of our constitutional history. The documents from the state and national conventions of African Americans that took place from 1831 through the 1860s provide evidence of how African Americans understood constitutional ideals, principles, interpretations, and text in the period of time when significant constitutional change was about to take place. As we will see, the conventions included debates and statements about a range of constitutional ideas, from the meaning of freedom in a society infused with slavery and race prejudice, to complex views about the meaning of national citizenship, to fundamental questions about the validity and morality of the constitution itself. By the 1860s, as the Civil War revealed the possibility of an America freed from slavery, African American Conventions began to present a broad vision of civil society where constitutionally protected freedom and citizenship encompassed everything from suffrage to employment to property to education. This vision, while shared intermittently by some white abolitionist allies, was both more insistent and more encompassing than those ideas of freedom most often articulated in the white public sphere. This vision, I argue, is the lost meaning of African American constitutionalism and is one well worth exploring as we consider how and whether American constitutionalism in the twenty-first century can speak to us.

Professor Fox presented an earlier version of this paper at the Originalism Works-in-Progress conference in San Diego several years ago.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week.")


New Book: Robert Steinfeld on the Origins of Judicial Review
Michael Ramsey

Recently published, by Robert J. Steinfeld (State University of New York, Buffalo - History): 'To Save the People from Themselves' - The Emergence of American Judicial Review and the Transformation of Constitutions (Cambridge University Press 2021). Here is the book description from the publisher:

In this expansive history, Robert J. Steinfeld offers a thorough re-interpretation of the origins of American judicial review and the central role it quickly came to play in the American constitutional system. Beginning with Privy Council review of American colonial legislation, the book goes on to provide detailed descriptions of the character of the first American constitutions, showing that they drew heavily on traditional Anglo/American constitutional assumptions, which treated legislatures as the primary interpreters of constitutions. Steinfeld then expertly analyses the central role lawyers and judges played in transforming these assumptions, creating the practice and doctrine of American judicial review in a half dozen state cases during the 1780s. The book concludes by showing that the ideas formulated during those years shaped critical decisions taken by the Constitutional Convention of 1787, which turned the novel practice into a permanent, if still deeply controversial, feature of the American constitutional system.

Constitutional judicial review did not start with Marbury!  It would be great if this important work would finally dispose of that old error, though I'm not optimistic.  It's too entrenched, and too useful a tool to bash originalism.

(Via Dan Ernst at Legal History Blog.)


Robert Pushaw: 'Originalist' Justices and the Myth that Article III 'Cases' Always Require Adversarial Disputes
Michael Ramsey

Robert J. Pushaw (Pepperdine University - Rick J. Caruso School of Law) has posted 'Originalist' Justices and the Myth that Article III 'Cases' Always Require Adversarial Disputes (Constitutional Commentary, forthcoming) (23 pages) on SSRN.  Here is the abstract:

In 1994, I rejected the modern Supreme Court’s assertion that Article III, as originally understood, used “Cases” and “Controversies” synonymously to establish a requirement of “justiciability”: limiting federal judges to deciding disputes between adverse parties. My linguistic and historical study revealed that only “Controversies” (e.g., between citizens of different states) necessarily involved such disputes. By contrast, “Cases” were proceedings in which a party asserted his rights in a form prescribed by law, regardless of whether an adversarial contest existed. Therefore, in “Cases” the federal courts’ main role would be interpreting and applying federal law, not umpiring a dispute.

Professor Pfander’s exhaustive research has led him to agree with me on all but one point. He accepts my definition of “Cases,” but not my conclusion that the Framers chose that word primarily to signify that federal judges’ key function would be expounding the law. Instead, Pfander argues that Article III’s drafters, following English and American legal tradition, used “Cases” as an umbrella term that encompassed all “litigable interests”: Claimants could bring any recognized court action to vindicate their legal rights. Such jurisdiction could be “contentious,” as exemplified by common law suits in which a plaintiff alleged the violation of a contract, tort, or property right by an adverse defendant. However, England also incorporated elements of the European civil law system, which allowed several types of “noncontentious” jurisdiction. In such cases, a court decided a petitioner’s request for a “constitutive” order, which recognized a legal right in an area such as family law, probate, bankruptcy, naturalization, admiralty, and equity.

This review describes Professor Pfander’s three important scholarly contributions. First, his thorough research has unearthed the deep historical roots of noncontentious jurisdiction. Second, he demonstrates that the First Congress and the early Supreme Court embraced such uncontested adjudication. Third, to integrate Article III’s original meaning with modern precedent, he proposes restricting federal court access to plaintiffs who have a “litigable interest”- a valid claim of a legal right presented in a form authorized by law. If such a claim is set forth in any Article III “Controversy” or in a “Case” with adverse parties, courts may demand a showing of a “litigable interest” and also a concrete dispute (as justiciability doctrines demand). By contrast, in “Cases” of noncontentious jurisdiction, the latter requirement makes no sense.

I applaud Professor Pfander’s recommended approach as pragmatic, yet faithful to Article III’s text and history. Moreover, Professor Pfander and I have reached similar conclusions about the historical meaning of Article III even though we have radically different political views. Therefore, our work suggests that originalism can be nonpartisan, contrary to the conventional wisdom that conservatives employ this methodology as a smokescreen to impose their political agenda.


Law Professors' History-Oriented Brief in the New York Guns Case
Michael Ramsey

At Volokh Conspiracy, David Kopel: Second Amendment professors brief in Supreme Court right to bear arms case.  From the introduction: 

On November 3, the U.S. Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. Bruen. The case will decide whether the Second Amendment right to "bear arms" is an actual right. Or conversely, if law-abiding adults who pass a biometric background check and safety training can be denied a concealed carry permit simply because permitting officials only issue concealed carry permits when they feel that the applicant has a special need. The Supreme Court's docket page for the case shows about three dozen amicus briefs filed on each side. In the next several weeks, I will write about some of those briefs. I'll start with the amicus brief that I co-authored with George Mocsary (U. of Wyoming law school) and Joseph Greenlee (Firearms Policy Foundation).

... Our brief focuses on legal history, particularly in the Founding Era and before. In this post, I will summarize parts of the brief, and, for some parts, provide additional background information.

Part I briefly looks at the text of the Second Amendment, which protects the right to "keep" arms and the right to "bear" arms. Rather than creating a hierarchy, the text protects both rights equally. Dictionaries cited in the Heller case—Thomas Sheridan (1796), Samuel Johnson (1773), and Noah Webster (1828, the first dictionary of American English)—all defined "bear" as to "carry" or "wear."


Part II delves into English history. The first Englishmen to have a written guarantee of arms rights were the settlers of the Virginia Colony in 1607 and the New England Colony in 1620. Their royal charters gave them and all succeeding immigrants the perpetual right to import from the King's dominion's "the Goods, Chattels, Armour, Munition, and Furniture, needful to be used by them, for their said Apparel, Food, Defence or otherwise."

Back in England, there was no written right to arms until the 1689 English Bill of Rights: "That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law." Yet the same Parliament that enacted the English Bill of Rights declared the right to arms, and other provisions, to be "true, ancient and indubitable rights." Like Americans such as John Adams, the English believed the right of self-defense and the right to arms to be based in natural law. ... [extensive historical discussion follows].

The New York case is likely to be the most significant originalist decision of the term.  For a historical counterpoint, see here (from Saul Cornell).