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30 posts from November 2021


Originalism and Dobbs
Michael Ramsey

Some commentators have suggested that if the Supreme Court, composed of six originalist or originalist-oriented Justices, fails to overrule Roe v. Wade in the pending Dobbs case (to be argued tomorrow), that would be a substantial blow to originalism.  (For example, here from former Attorney General Meese and here from Josh Blackman).

I think this view is mistaken (or at least, that it should be mistaken).  Dobbs is not about originalism. Most mainstream originalists think Roe was wrongly decided on originalist grounds.  I assume all six of the originalist/originalist-oriented Justices think so.  (Jack Balkin famously argues that Roe can be defended on originalist grounds, but he's not a mainstream originalist on this issue).

Dobbs is in part about stare decisis -- should Roe be overruled?  Originalism has no consensus answer to that question.  Like most if not all theories of constitutional interpretation, originalism has a troubled relationship with prior precedents that failed to apply its principles.  Among originalists, views range from fairly strong adherence to stare decisis for non-originalist precedents to complete rejection of stare decisis for non-originalist precedents.  Whatever the Court might say about stare decisis and Roe, it is likely to be compatible with some forms of originalism. To say that originalism compels overruling Roe is mistaken; only originalism plus some contested theory of stare decisis would compel overruling Roe.

This is, of course, something of a failure of originalism.  To be an effective practical approach to adjudication, originalism needs a broader consensus on its relationship to stare decisis.  But this is not something particular to the Dobbs case.

Dobbs is, in addition, potentially a case about broad versus incremental adjudication (if the Court decides that the petitioners should prevail).  The question presented in Dobbs is "Whether all pre-viability prohibitions on elective abortions are unconstitutional."  The Court could answer that question "no" without addressing the question whether any pre-viability prohibitions on elective abortions are unconstitutional.  That is, it could resolve Dobbs without deciding whether to completely overrule Roe.  It would have to reject the part of Roe's opinion that declared the viability line, but it would not need to address the broader question whether Roe's basic conclusion -- that the Constitution requires some protection for abortion rights --  should be rejected in its entirely.

Whatever one thinks of this incremental position (and some commentators sharply reject it), it does not pose a question that originalism can answer.  Whether to overrule broadly or narrowly is two steps removed from originalism -- it is a question about how to apply stare decisis, not a question about how to apply the Constitution's original meaning.

Thus I don't see why Dobbs, however it is resolved, should be a threat to originalism.  The Court could decide to retain Roe's viability line or (more likely) reject the viability line without addressing other aspects of Roe; neither outcome would be contrary to any consensus of originalist views about the relationship between originalism and stare decisis.

UPDATE:  At Re's Judicata, Richard Re argues for an incremental approach: Who’s Afraid of Gradualism in Dobbs?  From the core of the argument:

The Roberts Court has repeatedly shown a similar instinct for gradualism. Before major decisions on issues like campaign finance regulation and same-sex marriage, for instance, the Court signaled its interest in issuing a transformative ruling long before actually doing so. In the meantime, the Court moved slowly, taking only small steps before bold action. The idea that the Court should give notice before issuing a disruptive decision, which I have called “the doctrine of one last chance,” has many benefits. Giving the losing side one last chance to make its case can clarify how the justices are reasoning through the issue, expose that reasoning to sustained scrutiny and criticism, and prompt the Court to adjust course. Even if the Court follows through on its initial views, providing notice can prompt action by the political branches and help smooth out disruptive legal changes. 

The Court’s newest justices have continued the one-last-chance approach. Earlier this year, the Court considered whether to overrule a major precedent on religious liberty. Justice Barrett, joined by Justice Kavanaugh, declined to do so—not because they thought the precedent was correct, but rather because they were unsure just how to replace it. There is no doubt that these justices have thought deeply about religious liberty, yet they still saw wisdom in proceeding cautiously. And that intuition may already have been borne out, given the “difficulty” of later cases. In Dobbs, a similar approach could support a limited holding...

Whatever one thinks of this argument, originalism doesn't play a role in it, one way or the other.  Originalism doesn't tell us whether Justices should be gradualists or not.

COMMENT FROM ANDREW HYMAN: I previously blogged here about stare decisis.  In a nutshell, the judicial power and duty to give stare decisis great weight comes from the Judicial Vesting Clause.  However, the Harmonious Reading Canon strongly suggests that the Judicial Vesting Clause should not be construed in a way that undermines any other clause of the same document, e.g. the Tenth Amendment.  This is a primary reason why stare decisis must be weaker in constitutional cases than statutory cases. Another reason is that, from a practical point of view, the Constitution will effectively be amended, if not whittled away entirely, if judges think their decisions doing so are sometimes irreversible.  I have a copy of the excellent book The Law of Judicial Precedent, whose authors include two incumbent Justices, and I believe the list of relevant canons of construction (at page 866) is incomplete because it misses the most important one: the Harmonious Reading Canon.

MICHAEL RAMSEY ADDS:  For a different perspective, see this post at Public Discourse from David Upham: Casey v. Casey.  From the conclusion: 

Casey’s legal history of liberty, like Roe’s, was plainly mistaken. And just as the Casey Court set aside Roe’s error and its resulting spurious originalism, the Dobbs Court should set aside Casey’s error, and its unfounded living constitutionalism.


Jed Shugerman on Uses of "Vesting"
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted 'Vesting' Uses in UVA Rotunda Founding Era Collection, 1776-1789 (Stanford Law Review, Vol. 74, forthcoming 2022)  (133 pages) on SSRN.  Here is the abstract:

“The executive Power shall be vested in a President of the United States of America.” The Executive Vesting Clause is one of three originalist pillars for the unitary executive theory, that as a strict separation of powers, the president possesses executive powers like removal, exclusive from congressional limitations (i.e., they are indefeasible). Many originalists generally tend to assume that “vest” means a formalist approach to separation of powers, rather than more functional Madisonian check-and-balances.

Unitary judges and scholars, however, have not provided historical evidence that “vest” had such an original public meaning. This spreadsheet is part of "Vesting" (forthcoming, Stanford Law Review 2022), an article offering a close textual reading of the word “vesting” and an examination of its context, with the first survey of the available dictionaries from the era and the word’s usage in early colonial charters and American constitutions, the Convention, and ratification debates. The bottom line is that, in this era, the word “vest” did not connote exclusivity, indefeasibility, or a special constitutional status for official power. At best, the meaning of “vested” was unclear, and more likely, its ordinary meaning was a simple grant of powers without signifying the impermissibility of legislative checks and balances.

This survey of the word "vest" ("vested," "vesting," etc.) in the Framers’ writings in the University of Virginia's Founding Era Collection (the papers of Washington, Adams, Hamilton, Madison, Jay, and Jefferson, and the Ratification debates) from 1776 to 1789 produces approximately 1,000 different uses. Most of the uses refer to "vesting" by itself as a grant of power, but approximately 10% modify the word "vesting" with words like "fully," "solely," "exclusively," "completely," or "absolutely," or with references to "plenipotentiary" or "all" power (or similar modifiers), specifying a more robust kind of vested power. Conversely, approximately 1% of the uses added words like "limited" or "partial" vesting and the like, specifying a weaker kind of vesting. These uses suggest that the word "vest" by itself did not signify complete or unconditional power, but it needed to be supplemented. This survey indicates a range of usage, from “fully vested” to simply vested to “partly vested,” and uses like "fully vested" appeared frequently in the context of military authority, diplomatic authority, and legislative powers over taxation and commercial regulation, suggesting that some kinds of traditional executive power and legislative power might be more complete, but not all kinds of such powers.

This study of “vesting” in eighteenth-century constitutions and databases of Framers’ writings so that the “all” in the Legislative Vesting Clause may be more legally meaningful and potentially more support for the non-delegation doctrine, but the absence of "all" or similar words from Article II weakens the unitary executive theory of indefeasible executive power.


Michael Morley: The Independent State Legislature Doctrine
Michael Ramsey

Michael Morley (Florida State University - College of Law) has posted The Independent State Legislature Doctrine (Fordham Law Review, Vol. 90, 2021) (60 pages) on SSRN.  Here is the abstract:

The U.S. Constitution grants authority to both regulate congressional elections and determine the manner in which a state chooses its presidential electors specifically to the legislature of each state, rather than to the state as an entity. The independent state legislature doctrine teaches that, because a legislature derives its power over federal elections directly from the Constitution in this manner, that authority differs in certain important respects from the legislature’s general police powers that it exercises under the state constitution. Although the doctrine was applied on several occasions in the nineteenth century, it largely fell into desuetude in the years that followed. During the 2020 presidential election cycle, however, several Justices issued opinions demonstrating an interest in recognizing and enforcing the doctrine.

This Article contends that the doctrine is best understood as a general principle that gives rise to a range of different potential corollaries, each of which is supported by somewhat differing lines of precedent, reasoning, historical practice, and prudential considerations. Each of these potential implications of the doctrine may be assessed separately from the others; the doctrine need not be accepted or repudiated wholesale. The fact that a court or commentator may accept or reject certain applications of the doctrine does not mean that other aspects, or the doctrine as a whole, must be similarly embraced or jettisoned. This Article unpacks the independent state legislature doctrine, exploring and offering a normative perspective on each of its possible corollaries.

(Via Legal Theory Blog, where it is "Download of the Week" and "Highly Recommended".)


Michael Mannheimer: Fugitives from Slavery and the Lost History of the Fourth Amendment
Michael Ramsey

Michael Mannheimer (Northern Kentucky University - Salmon P. Chase College of Law) has posted Fugitives from Slavery and the Lost History of the Fourth Amendment (53 pages) on SSRN.  Here is the abstract:

Conventional historical accounts of the Fourth Amendment generally ignore the entire antebellum period. Fourth Amendment scholars of an originalist bent typically look to the three decades from the American Writs of Assistance controversy and the British Wilkesite cases in the 1760s, to the adoption of the Bill of Rights in 1791. Scholarship then jumps to the post-Civil War period and the first two Supreme Court decisions interpreting the Amendment, In re Jackson in 1878 and United States v. Boyd in 1886. Ignoring the entire antebellum period makes some sense given that the Supreme Court did not decide a single Fourth Amendment cases during this lengthy period.

But just because the Court did not make any Fourth Amendment law does not mean that the Amendment lay dormant. The Amendment was, in fact, very much alive in the hands of Northern lawyers and state legislators resisting the seizure of people of color in their States as alleged fugitives from slavery, whether under the auspices of the Fugitive Slave Acts of 1793 and 1850 or under the so-called common-law “right of recaption.” Lawyers representing alleged fugitives from slavery and state legislators trying to protect free persons of color from being kidnapped into slavery mobilized the Fourth Amendment as a preservation of state control of seizures within each respective State. According to this theory, while the Constitution’s Fugitive Slave Clause required that enslaved persons escaping bondage be “delivered up,” the Fourth Amendment demanded that any claim that a person was a fugitive from slavery would have to be adjudicated by the procedures established by the State where the claim was made. Seizing an allegedly enslaved person without heeding those procedures could subject the slave catcher to civil and criminal liability under state law. In the infamous case of Prigg v. Pennsylvania, the Supreme Court, rather than tackle this Fourth Amendment argument, simply ignored it and broadly rejected States’ attempts to regulate the seizure of allegedly enslaved persons within their borders. Ultimately, this view of the Fourth Amendment as a preservation of state control was forever lost.

Aside: is Prigg v. Pennsylvania actually the worst Supreme Court decision of the nineteenth century from an originalist perspective?  You'd think Dred Scott would have an unassailable claim.  But at least Chief Justice Taney in Dred Scott acknowledged the need to follow the Constitution's original meaning (while maliciously distorting it). Justice Story, usually a somewhat reliable originalist, simply ignored the Constitution to get where he wanted to go in Prigg -- like Taney in Dred Scott, futilely seeking to impose a political settlement from the bench.


Eric Segall on Textualism and Purposivism
Michael Ramsey

At Dorf on Law, Eric Segall: Interpreting Law and the Useless Debates Over Textualism and Purposivism.  From the introduction: 

There is a tremendous volume of legal scholarship on the proper way to read statutes ... The main dispute today is between those who identify as "textualists" or "strict textualists" and those who identify as "purposivists." The most important difference between these theories, which is often overstated, is that textualists focus mainly on the statutory text, and in most cases the common usages of the words in that text, while purposivists, while starting with the text, are also concerned with the purposes of the law at issue and the consequences of whatever interpretation the court decides to adopt. Everyone agrees these issues only arise when the statute in question is imprecise or unclear. Where the law is capable of only one meaning, judges should apply that meaning absent gross absurdity.

This blog post has one narrow objective given the oceans of words that have been spent on this topic, especially recently. With one minor exception, this post argues that this debate is silly and unnecessary. The reality is that textualists and even those who claim to be strict textualists often use the techniques of purposivists and purposivists of course take the text of statutes quite seriously. This debate is spent and we all should move on, as I explain below.

The one exception is for those judges who, following the lead of Justice Scalia, believe that legislative history should be ignored completely when they interpret statutes. This extreme position, which luckily very few judges accept, could certainly make a difference in some cases, especially in terms of the justifications for results judges write into their opinions. This blog post ignores the issue, however, because it has little bearing in the real world and the position is absurd, especially for a Justice who thought judges should try to ascertain the original public meaning of the ancient words of the United States Constitution by looking at sources such as the Federalist Papers.

We should move on from the textualist-versus-purposivist battles because, to put it simply, judges should use all relevant information to try and ascertain the meaning of statutory text and the purposes behind the law, which often includes a judge's best sense of what the law was trying to accomplish. There is simply not an either/or choice between text and purpose. The two are related and judges should not ignore one at the expense of the other. How the two will be balanced will of course depend on the specific facts and context of each case. ...

I mostly agree, particularly as to the point that textualism embraces context, with a couple of caveats and reservations:

(1) Professor Segall seems to be talking about an "original intent" version of purposivism that interprets the text in accordance with the purpose (intent) of the enactors at the time of enactment.  So described, it is a version of originalism (though perhaps somewhat distinct from textualist originalism).  There is, I think, another version of purposivism that asks something like: what result would the enactors want today if they were familiar with modern circumstances?  This version is very different from textualism.

(2) I'm not sure that all purposivists agree that "Where the law is capable of only one meaning, judges should apply that meaning absent gross absurdity."  I think at least some purposivists think that one can depart from the text if it leads to results contrary to the purpose (intent) of the enactors.  Text is a relevant factor, they would say, but isn't decisive in itself.   If so, that's sharply distinct from textualism, which would not allow such a departure.

(3) Scalia's rejection of legislative history was not a rejection of context.  It was founded on two main principles: (a) if the statute is clear, one should not use legislative history to pursue a supposed purpose of the statute that is contrary to its text (this is related to point (2) above); and (b) in interpreting an ambiguous statute, modern legislative history is so unreliable and subject to manipulation that it shouldn't count as evidence of meaning.  The latter point isn't a denial of the relevance of context; it's a specific denial of the relevance of modern legislative history.  That's why there's no contradiction between Scalia's rejection of modern legislative history and his use of founding-era contextual materials such as the Federalist Papers to interpret the Constitution.


Professors Barnett and Bernick on the Civil Rights Act of 1866
Andrew Hyman

I’d like to comment about the new book titled The Original Meaning of the 14th Amendment by Professors Randy Barnett and Evan Bernick.  It’s a very useful expression of their views, and includes discussion of the Civil Rights Act of 1866, which was written only a few months before Congress wrote the 14th Amendment.  The CRA is critical background for understanding the 14th Amendment, and no consensus about the latter will ever be likely without consensus about the former. 

Among other things, the CRA says that citizens “shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, and convey real and personal property as is enjoyed by white citizens ….” (emphasis added).  Barnett and Bernick correctly write that the CRA “is conventionally read as solely prohibiting discrimination with respect to the civil rights specified in the act.”  But they instead advocate a fundamental-rights reading, whereby the words “is enjoyed” refer to the time when the CRA was enacted.  The relevant laws at the time of enactment had to be not just extended to people of color, but also substantially preserved, they suggest.  On the contrary, I think the conventional antidiscrimination-only reading is the right one, and there is plenty of evidence for it in the statutory text itself. 

Professors Barnett and Bernick argue that the CRA forbade states from denying the listed rights (to sue, give evidence, et cetera) to any citizen, even if the state treats everyone the same and without racial discrimination.  They hasten to add that states do not all have to conform to these rights “in precisely the same way.”  Thus we are assured that states have enough flexibility so they would not be obliterated by Congress and the federal courts.  A huge problem with that thesis is the fact that the less “precisely” we read the CRA’s requirement, the less precisely we can ban racial discrimination; it is much more likely that the CRA allowed precisely no racial discrimination with respect to the listed rights.

Some people may be inclined to think that use of the present tense language “is enjoyed” in section one of the CRA points to the time of enactment.  However, section two of the CRA also uses the present tense in a similar way (emphasis added):

[A]ny person who … shall subject, or cause to be subjected, any inhabitant of any State or Territory to … different punishment, pains, or penalties … by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor….

Obviously, this refers to punishments that are prescribed as of the time the misdemeanor is committed, not the earlier time when the CRA was enacted, and thus section two tends to confirm a similar reading of section one.

            There are a few other parts of the presentation by Barnett and Bernick that I thought could have used some expansion regarding the CRA.  For example, various members of Congress indicated in 1866 that the CRA was fully justified by the Thirteenth Amendment, which seems to imply that they favored an antidiscrimination reading.  There are also explicit endorsements of the anti-discrimination reading, like this one by Senator Lyman Trumbull who wrote the CRA:

This bill in no manner interferes with the municipal regulations of any State which protects all alike in their rights of person and property. It could have no operation in Massachusetts, New York, Illinois, or most of the States of the Union.

Where are the unequivocal quotes on the other side of this CRA issue?  Finally, Professors Barnett and Bernick mention that the CRA was worded so that women and children would not automatically get any rights at the expense of men.  The antidiscrimination reading would seem to allow states the freedom to improve those old laws, but a fundamental-rights reading would apparently either preserve the status quo or else give judges discretion to decide that disagreeable aspects of the CRA-listed rights are not fundamental.  Again, it would be useful to see unequivocal quotes opposing Senator Trumbull.


Mark Storslee: Church Taxes and the Original Understanding of the Establishment Clause
Michael Ramsey

Recently published: Mark Storslee (Penn State), Church Taxes and the Original Understanding of the Establishment Clause (169 U. Pa. L. Rev. 111 (2021)).  Here is the abstract: 

Since the Supreme Court’s decision in Everson v. Board of Education, it has been widely assumed that the Establishment Clause forbids government from ‘aiding’ or subsidizing religious activity, especially religious schools. This Article suggests that this reading of the Establishment Clause rests on a misunderstanding of Founding-era history, especially the history surrounding church taxes. Contrary to popular belief, the decisive argument against those taxes was not an unqualified assertion that subsidizing religion was prohibited. Rather, the crucial argument was that church taxes were a coerced religious observance: a government-mandated sacrifice to God, a tithe. Understanding that argument helps to explain a striking fact about the Founding era that the no-aid theory has largely ignored—the pervasive funding of religious schools by both the federal government and the recently disestablished states. But it also has important implications for modern law. Most significantly, it suggests that where a funding program serves a public good and does not treat the religious aspect of a beneficiary’s conduct as a basis for funding, it is not an establishment of religion.

(Via Paul Caron at TaxProf Blog.)


Nicholas Serafin: Redefining the Badges of Slavery
Michael Ramsey

Nicholas Serafin (Santa Clara University - School of Law) has posted Redefining the Badges of Slavery (University of Richmond Law Review, forthcoming) (42 pages) on SSRN.  Here is the abstract:

In The Civil Rights Cases the Supreme Court held that Section 2 of the Thirteenth Amendment grants Congress the authority to eliminate the “badges of slavery.” Many legal scholars have argued that some contemporary injustices impose a badge of slavery and thus can be addressed via Section 2 legislation. For example, Section 2 has been cited as grounds for addressing hate speech, racial profiling, sexual orientation discrimination, violence against women, limitations on the right to an abortion, sexual harassment, and more.

But what precisely is a badge of slavery? Relatively few legal scholars have attempted to answer this prior question. Those who have argue that the badges metaphor referred narrowly to antebellum practices that threatened to reimpose chattel slavery. According to this view, few, if any, contemporary injustices threaten to reimpose chattel slavery, and so few, if any badges of slavery remain. Thus, legislation addressing contemporary injustices falls outside of Congress’s Section 2 authority.

No one has attempted to defend a more expansive view of Section 2 by appealing to the legal history and to the original public meaning of the badges metaphor. This paper provides just such a defense. In this Article I demonstrate that the badges metaphor has always possessed a broad range of application. The badges metaphor extended beyond race and chattel slavery to gender- and class-based subordination. Moreover, the badges metaphor first appears not in the Civil Rights Cases, as is most often claimed, but in Dred Scott v. Sandford. Justice Taney’s usage of the metaphor in Dred Scott is deeply revealing and supports an expansive reading of Section 2, yet it has been overlooked by contemporary legal scholars.

Drawing on the popular and legal history of the badges metaphor, I defend the view that a badge of slavery results from laws or social customs that impose stigmatic harms upon subordinate social groups. I then demonstrate how this expansive understanding of Section 2 can be used to support attempts to eradicate contemporary badges of slavery.


The 1791 Understanding of the Bill of Rights Versus the 1868 Understanding
Andrew Hyman

Professor Kurt Lash recently proposed that the first two clauses of the 14th Amendment “respoke” the Bill of Rights, and thus gave to the older words of 1791 an updated meaning as of 1868.  He suggests that the 1868 meaning applies against both the state and federal governments, and that the older 1791 meaning applies against no government at all.  As Professor Lash puts it: “My claim here is simply that the people of 1868 believed that citizens of the United States had one Bill of Rights, and they communicated words that made this 1868 understanding of that Bill enforceable against both state and federal governments.”

This is an interesting proposal, and I would not rule it out.  I’m inclined to agree that there is only one Bill of Rights protecting citizens in the same way from both the federal and state governments, and that it applies against the states only via the Privileges or Immunities Clause rather than the Due Process Clause.  But, unlike Professor Lash, I suspect that the meaning of our single Bill of Rights was established in 1791 rather than 1868.  My only caveat is that the Due Process Clause *may* be an exception, both because it is explicitly written into the 14th Amendment, and also because  a particular (non-substantive) meaning was attributed to it by the U.S. Supreme Court in the 1850s.  The rest of this blog post focuses entirely on the other parts of the Bill of Rights rather than the DP Clause.

The two clauses that Professor Lash thinks “respeak” the Bill of Rights are the Privileges or Immunities Clause and the Citizenship Clause.  Both of these clauses are applicable only to citizens, which raises a question: what about “respeaking” the rights of persons who are not citizens, such as the right of tourists in the United States to be free from cruel and unusual punishments inflicted by the federal government? Perhaps one might argue that noncitizens’ Bill of Rights protections were somehow modified and updated by the last two clauses in Section One of the 14th Amendment, in combination with the first two clauses, but that seems convoluted, especially because those last two clauses only apply against the states.

Even if we just focus on citizens alone, and forget about noncitizens, the first clause of the 14th Amendment expressly says only who is constitutionally entitled to citizenship, without expressly speaking about the rights associated with citizenship, much less modifying those citizenship rights.  It is true that many express clauses of the Constitution have implied consequences, but here we are contemplating an implication of another implication: the first alleged implication is that the Citizenship Clause implies a bundle of rights in the language of the 1791 Constitution, and the second alleged implication is that this implied 1791 language is impliedly imbued with 1868 meanings.  I happen to agree with the first implication, but the alleged implication of that implication seems much more tenuous.

Professor Lash points out that the Thirteenth Amendment uses the same language as the older Northwest Ordinance, while meaning something different and more thoroughly abolitionist. However, in that situation the Thirteenth Amendment did not refer back to the Northwest Ordinance and instead actually repeated the older language so that a reader could understand it without even knowing the Northwest Ordinance ever existed.  By contrast, a reader of the first two clauses of the 14th Amendment must refer to some other clauses or sources to figure out what privileges or immunities are at issue.  Moreover, Section 3 of the 14th Amendment clarified the 13th Amendment by denying “any claim for the loss or emancipation of any slave….”  So, precedents like this do not quite support what Professor Lash suggests.

Professor Lash also asserts that, “The original meaning of the Bill of Rights had to be reshaped before these 1791 provisions could be applied against the States.”  That’s doubtful.  The First Amendment did not guarantee that states could pass laws establishing religion, limiting the exercise of religion, or punishing seditious speech; it merely had that effect because amendments like this one proposed by James Madison were rejected: “No State shall violate the equal rights of conscience, or the freedom of the press….”  That amendment by Madison would have existed quite comfortably alongside the First Amendment, without contradiction.

Additionally, I am skeptical that the Bill of Rights as understood in 1867 was always (or usually) of greater benefit to citizens than the original understanding in 1791.  For example, a newspaper hit by numerous libel lawsuits in 1791 and then found innocent in federal court was entitled to attorney’s fees, but by 1868 the “American Rule” required the newspaper to pay its own attorney fees even though it did nothing wrong.  Professor Lash suggests that perhaps “the original Freedom of Speech and Press Clauses communicated nothing more than freedom from prior restraints….”  I don’t believe those clauses were so stingy.  As Madison once said, “The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States.”  That’s because “the freedom of speech” referred to the freedom that existed in the thirteen states as of 1790, not at another place or an earlier time.

There is good evidence that Republicans in the 1860s were originalists, and thus that they would have favored the original meaning of the Bill of Rights once they were persuaded of their own errors.  For instance, at the 1860 Republican National Convention, David Wilmot said: “It is our purpose to restore the Constitution to its original meaning; to give to it its true interpretation; to read that instrument as our fathers read it. (Applause.)”.  Wilmot did not say, “It is our purpose to update the Constitution by keeping its words but ejecting their original meaning; to give to it a modern interpretation; to read that instrument as we believe it ought to be read.”

I agree with much of Professor Lash’s Fourteenth Amendment scholarship, and might end up agreeing with this new paper too, but not today, for the reasons explained.  Incidentally, I hope to have a blog post up soon discussing the interpretation given by Professors Barnett and Bernick of the Civil Rights Act of 1866.


John Bruegger on Scott Boykin on Original-Intent Originalism
Michael Ramsey

John A. Bruegger (Southern New Hampshire University) has posted Original-Intent Originalism, Semantic Instability, and the Impact of Linguistics on American Constitutionalism: A Reply to Professor Boykin (Washburn Law Journal, Vol. 61 (2022, forthcoming)) (20 pages) on SSRN.  Here is the abstract:

In his recent article, "Original-Intent Originalism: A Reformulation and Defense," [60 Washburn L.J. 245 (2021)] Professor Scott Boykin argues that original-intent originalism is the proper interpretive method for deciding constitutional issues. While Boykin argues several points, all of them can be seen as a view of the nature of language that was known but rejected by the Founders when drafting the Constitution. Boykin’s erroneous linguistic argument for constitutional interpretation relies on Hirsch, Wittgenstein, Schleiermacher, and Searle, all of whom wrote their philosophies in the 20th century. Boykin’s argument on interpreting the language of the Constitution is flawed and anachronistic because it applies 20th-century linguistic theory to an 18th-century document. To properly solve the Constitution’s interpretive problem, it is imperative to understand what the Framers understood regarding the nature of language at the time they wrote the Constitution. Did they believe the meaning of words is fixed and static, as Boykin argues, or did they believe that language changes over time? This article will demonstrate that the drafters were heavily influenced by 18th-century political philosophers Thomas Hobbes, John Locke, and Charles de Secondat, Baron of Montesquieu, all of whom wrote on the changing nature of language. Furthermore, the drafters were also influenced by English jurist William Blackstone and his Commentaries on the Laws of England, in which, buried deep in its many pages, Blackstone articulates his view of the changing nature of legal language. These writers were correct in their estimation of the semantic instability of language, whose meaning changes over time and with the circumstances. In other words, the Founders were influenced by this changing nature of language and intentionally drafted the Constitution in imprecise terms to avoid the idea that language is fixed and static. It is through this "original" intent of the fluid meaning of language that the Constitution should be construed.