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17 posts from January 2022


Seth Barrett Tillman on the Design of Presidential Selection
Michael Ramsey

At The New Reform Club, Seth Barrett Tillman: How the Constitution’s Original (or pre-1801) Electoral College Worked. From the introduction: 

Under the original design of the Constitution, members of the Electoral College would each cast two votes for President for two distinct candidates, and, at least, one of the two votes cast by each elector could not be an inhabitant of the same state as the elector. There was no separate ballot for Vice President. Generally, the candidate with the most electoral votes would become President, and the runner-up in the Electoral College, who might very well be a political rival of the prevailing candidate, would become Vice President. This scenario is what happened in the 1796 presidential election. Incumbent Vice President John Adams, a Federalist, had 71 electoral votes, and 70 electoral votes was a majority of the electors. Former Secretary of State Thomas Jefferson, the runner up, was a Democratic-Republican, had 68 electoral votes, which was less than a majority of the electors. Adams became President, and Thomas Jefferson became Vice President. (There were 138 authorized electors, and, on this occasion, all the authorized electors voted.)

By modern U.S. elections standards it was an odd system, particularly because it was possible for more than one candidate to carry a majority of the electors. This is how that system worked....

It really was a terrible system.  Among other things, the Framers should have anticipated that (once George Washington left the scene) the top two candidates would be rivals (as promptly happened with Adams and Jefferson).

And a followup post from Professor Tillman: What the Twelfth Amendment Did and Did Not Do.  Key takeaway: the Twelfth Amendment improved the process, but still had its problems.  For example:

Under the pre-12th Amendment constitution, the House could choose among the top five candidates; after the 12th Amendment, the House was limited to the top three candidates. The problem is that the Constitution does not identity what should happen if there are not three candidates which can be readily identified as the top three. This could happen in a number of ways.

Presidential Ties

There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 4; or,

There can be a 2-way tie for first place (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2; or,

There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 3; or,

There can be a first place candidate (carrying less than a majority of the electors), with a second place candidate, and an q-way tie for third place, where q is greater than or equal to 2.

In each of these scenarios, it could be plausibly argued that the House has a power to choose the President among the top three candidates and among anyone (else) who ties among the top three. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the House is entirely disabled from holding a contingent election for President.


The Stolen Art Case and the Limits of Formalism
Michael Ramsey

Today the Supreme Court hears argument in  Cassirer v. Thyssen Bornemisza Collection Foundation, which involves an effort to recover a painting seized by the Nazis that ended up in the hands of a Spanish Museum.   The question presented is a technical one:

Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

To my mind the answer is blindingly obvious.  The Foreign Sovereign Immunities Act (FSIA), Section 1606, directs that:

As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances...

The  defendant in Cassirer is a Spanish state-owned entity (the museum) that is defined as a "foreign state" under the FSIA.  It is not entitled to immunity as a result of an exception to immunity under Section 1605.  Therefore, by Section 1606, it "shall be liable in the same manner and to the same extent as a private individual under like circumstances."  No one disputes any of this.

Further, no one disputes that under the Court's longstanding decision in Klaxon v. Stentor Electric Manufacturing Co., a similar suit against a private defendant would be governed by the substantive law chosen by the forum state's choice-of-law rules.  That is, a "private individual under like circumstances" would be governed by the choice of law rules where the suit is heard (here, California).  Thus, it seems (to me) necessarily to follow  that the state-owned defendant in Cassirer should also be governed by the choice of law rules where the suit is heard.  (I joined a law professors' amicus brief, principally written by Professor Zachary Clopton of Northwestern, saying basically that.) 

I'm optimistic that the Supreme Court will agree: the Court has been excellent in following the text of the FSIA in a series of recent cases.  But the fact that the case has gotten as far as it has is not encouraging.  An excellent panel of the Ninth Circuit (Judges Callahan, Bea and Ikuta) held instead that federal common law (meaning them making it up) should govern the choice of law question.

I understand their impulse.  California has absurdly broad choice of law rules that in this case might have applied California law to a dispute about a Spanish defendant's title to a painting seized from its rightful owner (a German) by Germans in Germany, and ultimately acquired by the Spanish defendant from a Swiss citizen in Spain.  Moreover, there may well be serious foreign policy implications were a court to force the Spanish defendant -- which wasn't complicit in or likely even aware of the initial theft -- to give up the painting.

In a formalist world, none of this should matter.  The statute says the same rules apply to a private defendant and a non-immune state defendant.  That's all one should need to know.  But it wasn't enough to make this an easy case (at least so far).  

RELATED:  Will Baude has thoughts on the case here.  He may well be right about some larger concerns, but that doesn't affect my view of this particular case.  


New Criterion Symposium on Common Good Conservatism
Michael Ramsey

At New Criterion, a symposium on “Common-good conservatism: a debate”, with a leading essay by Kim R. Holmes, responses by Ryan T. AndersonJosh HammerCharles R. KeslerDaniel J. MahoneyJames PieresonRobert R. Reilly, and R. R. Reno, followed by concluding remarks from Mr. Holmes.

Kim Holmes' essay is The Fallacies of the Common Good.  From the introduction:

Anyone observing the evolution of conservative thought over the past few years could not have escaped a growing trend. Politicians, intellectuals, and think-tankers are questioning traditional American conservatism’s commitment to limited government, individual natural rights, and economic freedom. They are talking up the virtues of the common good in ways that call into question their commitments to liberty and freedom.

The philosophical questioning of the principles of the American founding is coming from two different factions within the Right. One involves the national conservatives. The other is from philosophers who wish to resurrect the moral organizing principles of natural law. Both reject the idea of “intrinsic” rights that is traditionally associated with the founding.

The fact that these critiques arise from the American Right is significant. American progressivism has long questioned the founding and tried to revise it to suit its purposes. Now it appears members of the Right are doing the same thing. Why? And what are the implications, not only for conservatism but for the American nation?

Othe two common-good schools of thought, the national conservatives are the more prominent. Intellectuals such as Yoram Hazony and Josh Hammer have developed a theory of American conservatism that is inspired by Edmund Burke. What is novel is not the reference to Burke per se—the conflict between Burke and John Locke has long been part of the debate on whether the founding was liberal or conservative. Rather, it is the linking of the Burkean argument to the tradition of nationalism that is new. Like Burke, the national conservatives believe a nation’s identity and government should be organized around its unique history, culture, and customs. Like modern nationalists, they believe national sovereignty is justified by the particular rights of peoples—all peoples in their unique ways—rather than by the universalist claims of legitimacy that often attend democratic institutions.

One of the most thorough expositions of the national-conservative viewpoint is found in an essay by Josh Hammer published in the Harvard Journal of Law and Public Policy [Ed.: available here]. Hammer criticizes the doctrine of constitutional originalism and posits instead what he calls “common-good originalism.” His main conclusion is that the American founders were not really Lockean believers in intrinsic rights, but Burkeans who saw rights as instrumental or as means to an end. ...

For that reason, conservatism “rightly understood” is “more open to wielding state power” and, when need be, willing to “enforce our order” or even to “reward friends and punish enemies (within the confines of the rule of law).”

Josh Hammer's response is Yesterday’s man, yesterday’s conservatism: On common-good originalism.

Via Paul Mirengoff at Powerline, who summarizes the essays here:

The National Conservatives, A Debate

The National Conservatives, A Debate, Part Two

He also points to this essay by Peter Berkowitz: The Debate Over 'Common-Good Conservatism'.


Ann Woolhandler on Nicholas Parrillo on Nondelegation
Michael Ramsey

Ann Woolhandler (University of Virginia School of Law) has posted Public Rights and Taxation: A Brief Response to Professor Parrillo (11 pages) on SSRN.  Here is the abstract:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared, particularly arguing that Congress itself addressed the important issues as to the 1798 tax. This paper instead focuses on Parrillo’s claim that the 1798 tax did not fall within any limited special category for nondelegation purposes. Admittedly, Parrillo’s evidence undermines some generalizations that early rulemaking was not “coercive and domestic.” Taxation, however, falls into the category of public rights, which could include matters that were domestic and coercive, but that nevertheless allowed for a more lenient application of separation of powers strictures.

Here are links to the key papers discussed in the essay:

Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power:
New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021)

Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1497 (2021)

UPDATE:  Jonathan Adler comments at Volokh Conspiracy: Woolhandler on Public Rights, Taxation and Delegation at the Founding, including this observation: 

One point that Woolhandler's comment underscores is that contemporary characterizations of the scope, nature, importance of particular delegations may not track with those of the founding period. Indeed, the prevailing categories and characterizations of 1787 might not even make much sense to modern commentators. But insofar as the original meaning of the Constitution does place limits on the delegation of legislative power, founding era characterizations and understandings would be more important than those of today.


Podcast on Executive Power and Originalism with Jed Shugerman, Eric Segall and Me
Michael Ramsey

Thanks to Eric Segall for hosting me on his podcast Supreme Myths along with Professor Jed Shugerman of Fordham Law School -- the topic is "Presidential Power, Originalism, and Judicial Review," and Professor Shugerman and I agree on more things than one might expect, while still disagreeing on a lot. Sometimes we gang up on our moderator.

(There are other interesting podcasts in the series, including Professor Segall talking with Jamal Greene about his new book How Rights Went Wrong, among other things.)


Jack Beermann: The Immorality of Originalism
Michael Ramsey

Jack Michael Beermann (Boston University School of Law) has posted The Immorality of Originalism (56 pages) on SSRN.  Here is the abstract:

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions.


The Year in Review: Originalism Articles of 2021 (Part 3)
Michael Ramsey

My final post in this series is entirely subjective: I picked 22 originalism-oriented articles from 2021 (that weren't on my other 2 lists, see here and here), that were featured on the Originalism Blog, and that I thought were especially interesting.  (Here is my similar post from last year.) But probably I forgot some.  Here they are:

Gregory Ablavsky (Stanford), Getting Public Rights Wrong: The Lost History of the Private Land Claims

Jud Campbell (Richmond), The Emergence of Neutrality

Christine Kexel Chabot (Loyola Chicago), Interring the Unitary Executive

Saul Cornell (Fordham), The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America

James Fox (Stetson), The Constitution of Black Abolitionism: Re-Framing the Second Founding

Josh Hammer (Edmund Burke Foundation; Newsweek), Common Good Originalism: Our Tradition and Our Path Forward 

Jean Galbraith, The Runaway Presidential Power over Diplomacy

Anita Krishnakumar (Georgetown), Statutory History

Kurt Lash (Richmond), Re-Speaking the Bill of Rights: A New Doctrine of Incorporation 

Kurt Lash (Richmond), The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists)

Gary Lawson (Boston University) & Guy Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law), Are People in Federal Territories Part of “We the People of the United States”?

Thomas H. Lee (Fordham), Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787 – 1792 

Ethan Leib (Fordham), Are the Federal Rules of Evidence Unconstitutional? 

Michael Mannheimer (Northern Kentucky), Fugitives from Slavery and the Lost History of the Fourth Amendment

James Pfander (Northwestern) & Andrew Borrasso (J.D. Northwestern '20), Public Rights and Article III: Judicial Oversight of Agency Action

James Pfander (Northwestern) & Elena Joffroy (J.D., Northwestern '20), Equal Footing and the States "Now Existing": Slavery and State Equality Over Time

Elizabeth Pollman (Penn), Corporate Personhood and Limited Sovereignty 

Saikrishna Prakash (Virginia) & William Hall (Virginia JD ’19), The Constitution’s First Declared War: The Northwestern Confederacy War of 1790-95

David Schwartz (Wisconsin) & John Mikhail (Georgetown), The Other Madison Problem

Holden Tanner (Yale J.D. ‘21), Constitutional Norms in Originalist Adjudication 

Franita Tolson (USC), 'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning 

Lael Weis (Melbourne), Originalism and Constitutional Amendment


Eric Claeys on Dobbs and Precedent
Michael Ramsey

Eric Claeys (George Mason - Scalia) is guest-blogging at Volokh Conspiracy about his article Dobbs and the Holdings of Roe and Casey (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, forthcoming).  Here are his initial posts:

Dobbs and the Holdings of Roe and Casey: Roe and Casey—reaffirming, overruling … and rewriting

Dobbs and the Holdings of Roe and Casey: Roe, its judgment, and its reasons for decision

And here is the abstract of the article from SSRN:

The U.S. Supreme Court is currently considering the case Dobbs v. Jackson Women’s Health Organization. In Dobbs, the State of Mississippi has asked the Court to overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). At oral argument, many of the Justices seemed to agree that Dobbs fairly presents the question whether Roe and Casey should be reaffirmed or overruled. At argument, however, Chief Justice John Roberts explored an alternative theory. In this exploratory theory, Roe and Casey entitle women only to a fair or meaningful opportunity to obtain abortions during pregnancy. Neither Roe nor Casey entitles women to obtain abortions, the theory suggests, up to the time when their fetuses are likely to be viable after birth.

This Article studies that exploratory theory with the two most relevant sets of legal doctrines. Because the theory raises questions about what Roe, Casey, and other previous abortion cases held, the Article summarizes general legal principles about precedents and judicial authority. Courts rely on these principles when they identify the holdings, reasons for decision, and obiter dicta from earlier decisions. Because Roe, Casey, and the other relevant decisions all considered overbreadth challenges to state abortion restrictions, the Article also summarizes the legal rules federal courts follow when they consider facial overbreadth challenges. The Article applies those two sets of doctrines to Roe, Casey, and 11 other subsequent cases in which the Court declared unconstitutional state pre-viability restrictions on abortion. In all of those cases, necessary to a judgment was this proposition of law: A state restriction on abortion violates the Fourteenth Amendment Due Process Clause if it restricts a substantial number of pre-viability abortions without justification. Neither Roe, nor Casey, nor any of the other 11 post-Roe and -Casey decisions invalidating pre-viability abortion restrictions can be interpreted as narrowly as they would need to be for the theory explored at oral argument in Dobbs to be convincing or faithful to the Court’s case law.

This Article helps make clear the choices presented in Dobbs. Justices may reaffirm Roe and Casey, and they may overrule those cases. Unless they depart drastically from standard legal rules about judgments and overbreadth, however, they cannot avoid that choice.

Though not directly concerned with originalism, the article and the situation in Dobbs pose important questions about the way originalism interacts with precedent.


Mitchell Berman Responds to Stephen Sachs' Article "Originalism: Standard and Procedure"
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure” (Harvard Law Review Forum (forthcoming 2022)) (17 pages) on SSRN.  Here is the abstract:

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees that the basic distinction Sachs highlights is important, but argues that it’s already well understood in the constitutional theory literature under different labels, such as the familiar distinction between theories of legal content and of adjudication, and the less familiar distinction between “constitutive” and “prescriptive” theories of constitutional interpretation. It argues further that, nomenclature aside, the distinction does not lend originalism the support that Sachs claims for it because we remain without good reason to believe that originalism is our constitutional standard.

Professor Sachs' article Originalism: Standard and Procedure, one of the most downloaded originalism articles of 2021, was published in the current issue of the Harvard Law Review (135 Harv. L. Rev. 777 (2022)).

I agree with Professor Berman's comment that we need "good reason to believe that originalism is [or, I would say, should be] our constitutional standard" but I think there are some good reasons.


The Year in Review: Originalism Articles of 2021 (Part 2) – The Top 25 Most Downloaded New Papers
Michael Ramsey

This post continues the retrospective on originalism scholarship in 2021 -- see here (books)and here (articles part 1) for the first two posts.  These are the 25 most downloaded originalism/textualism-oriented new papers posted on SSRN in 2021, as featured on the Originalism Blog.  (Here is the list for 2020).

Of course this measure has substantial limitations, including that it favors papers posted early in the year; that not all important papers are posted on SSRN; and that number of downloads does not really prove anything about a paper except how many times it was downloaded.  But with those caveats, here's the list:

1. Gerard Magliocca (Indiana -- McKinney), Amnesty and Section Three of the Fourteenth Amendment

2. Stephen Sachs (Harvard), Originalism: Standard and Procedure

3. Kevin Tobia (Georgetown), Brian Slocum (McGeorge) & Victoria Nourse (Georgetown), Statutory Interpretation from the Outside

4.  David Pozen (Columbia) & Thomas Schmidt (Columbia), The Puzzles and Possibilities of Article V

5.  Mitchell Berman (Penn) & Guha Krishnamurthi (Oklahoma), Bostock was Bogus: Textualism, Pluralism, and Title VII

6.  Orin Kerr (Berkeley), Katz as Originalism

7.  Judge Andrew Oldham (U.S. Court of Appeals, Fifth Circuit), Official Immunity at the Founding

8.  Evan Bernick (Northern Illinois), Eliminating Constitutional Law

9.  James Cleith Phillips (Chapman) & Josh Blackman (South Texas), Corpus Linguistics and Heller

10.  Aaron Tang (Davis), The Originalist Case for an Abortion Middle Ground

11.  Matthew Seligman (Yale), The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes

12.  Samuel Bray (Notre Dame) & Paul Miller (Notre Dame), Getting Into Equity

13.  Seth Barrett Tillman (NUI Maynooth), Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Very Short Response to Professor Cass Sunstein (and Others)

14.  Jed Handelsman Shugerman (Fordham), 'Vesting': Text, Context, Dictionaries, and Unitary Problems

15.  Frederick Schauer (Virginia), Unoriginal Textualism

16.  Matthew Schafer (Fordham), In Defense: New York Times v. Sullivan

17.  Seth Barrett Tillman (NUI Maynooth) & Josh Blackman (South Texas), Offices and Officers of the Constitution, Part I: An Introduction

18.  Jack Beermann (Boston University) & Gary Lawson (Boston), The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes

19.  (tie) Aaron Nielson (BYU) and Christopher Walker (Ohio State), Congress's Anti-Removal Power

19.  (tie) Laurent Sacharoff (Arkansas), The Broken Fourth Amendment Oath

21.  Evan Bernick (Northern Illinois), Constitutional Hedging

22.  Eliza Sweren-Becker (Brennan Center) & Michael Waldman (Brennan Center), The Meaning, History, and Importance of the Elections Clause

23.  Joseph Blocher (Duke) & Mitu Gulati (Virginia), Navassa: Property, Sovereignty, and the Law of the Territories

24.  David Kopel (Independence Institute) & George Mocsary (Wyoming), Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii

25.  Joel Alicea (Catholic), Liberalism and Disagreement in American Constitutional Theory