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28 posts from February 2022

02/08/2022

Mark Pulliam on George Thomas on Originalism
Michael Ramsey

At Law & Liberty, Mark Pulliam: Does the Written Constitution Matter? (reviewing [unfavorably] The (Un)Written Constitution (Oxford University Press 2021) by George Thomas).  From the introduction:

Claremont McKenna College professor George Thomas, in his compact monograph The (Un)Written Constitution (2021), tries to turn back the clock to the halcyon days of freewheeling judicial activism. Clocking in at a mere 147 pages of text, Thomas purports to deconstruct the central claims of originalism and to debunk its chief proponent, the late Justice Antonin Scalia. (Inexplicably, Robert Bork merits a single mention.) This is an ambitious goal for a book containing five slim chapters. Does he succeed? In a word, no.  

Thomas begins by adducing—in aha! fashion—examples of the obvious: the Constitution (like all texts) is not self-executing; not all language in the Constitution has a self-evident literal meaning (“the text does not explain itself”); Justices and scholars have interpreted the Constitution differently throughout history, sometimes in a dubious manner; even those scholars purporting to be originalists often disagree regarding constitutional interpretation in particular contexts; some critics (citing Jonathan Gienapp and Eric Segall in particular) are skeptical of the claims of originalism; Justices from prior eras exhibited beliefs and attitudes in their opinions that may strike the modern sensibility as unfashionable or unenlightened; originalism, at least as espoused by Scalia in his dissenting opinions, would deny certain groups political gains granted by the Court (e.g., Obergefell v. Hodges) which progressive thinkers now take for granted, etc.

His conclusion: It is impossible to make sense of the Constitution by looking only at the words on the page....

And from the conclusion:

Thomas is correct that most of the disputes among Justices and constitutional scholars are ultimately based on differing “political theories”; “these unwritten ideas drive our most persistent constitutional debates.” This admission inadvertently reveals the weakness of Thomas’s entire thesis. If so many readings of the “unwritten Constitution” are possible, doesn’t this prove the wisdom of unelected judges exercising restraint, and leaving policymaking to the elected branches? Thomas never squarely addresses this question. Content with the Court’s modern role as “Platonic Guardians,” as described by Judge Learned Hand in the 1958 Oliver Wendell Holmes Lectures, Thomas argues that judicial lawmaking is not just “legitimate,” it is “essential.” He concludes: “We are always going to have to make judgments about how best to apply the Constitution to our current circumstances and those judgments will always be subject to debate.” This is a trite tautology, not a reasoned argument.

Unlike Akhil Reed Amar’s similarly-titled 2012 book, The (Un)Written Constitution is superficial, derivative, and entirely predictable. At most, it is suitable for stimulating one side of a discussion in an undergraduate seminar, as a counterpoint to Bork’s The Tempting of America (1990), Greg Weiner’s The Political Constitution (2019), or a similar brief for judicial restraint. ...

There's an important point here about nonoriginalist scholarship that's worth further highlighting.  Often nonoriginalists seem to think that debunking originalism makes the case for nonoriginalist judging.  As the review says, it does not.  If the Constitution's original meaning is systematically indeterminate, a natural conclusion is that judges should refrain from constitutional adjudication.  (This is Eric Segall's position, for the most part.)  It takes an additional argument to say that if the Constitution's original meaning is indeterminate, judges should supply a meaning of their own choosing.

02/07/2022

Pence is Right, Eastman Might Be Right, and Trump is Wrong
Michael Ramsey

Regarding the recent exchange between former Vice President Pence and former President Trump on the Vice President's powers: the Constitution's text, given its most plausible reading, resolves many questions (though not all of them).  On this matter, Pence seems clearly in the right.

The question is whether the Vice President has power to disregard electoral votes which he thinks are invalid.  Nothing in the Constitution's text gives him this power.  (I'm leaving aside the complex and constitutionally suspect Electoral Count Act, though I think nothing there purports to give him that power either.)

The Twelfth Amendment says:

[T]hey [the Electors in each state] shall sign and certify [the lists of persons receiving votes for President and Vice President], and transmit [the lists] sealed to the seat of Government of the United States, directed to the President of the Senate [i.e., the Vice President; -- The President of the Senate shall, in the presence of the Senate and the House of Representatives, open all the certificates, and the votes shall then be counted; ...

That's all the Amendment (or anything else in the Constitution's text) says about the Vice President's power relating to electoral votes.  It says nothing about a power  to disregard allegedly defective votes.

Even assuming this language means that the Vice President counts the electoral votes (which it doesn't say, but might be read to imply), counting is manifestly different from deciding on validity.  Counting is a ministerial task.  Deciding on validity is an exercise of discretion and judgment.  One does not imply the other.

Moreover, there are obvious problems with making the Vice President the judge of disputed electoral votes.  The Vice President may have a enormous conflict of interest (as Pence did in 2020, and Vice President Harris may in 2024).  Even in the Framers' pre-party-system politics, the risk of conflict of interest should have been apparent.  That's not a reason to read a power out of the Constitution that's clearly stated, but it is a reason to avoid a strained reading of what the text says.

From media accounts, I'm not sure what Trump's legal argument is, but I have a hard time seeing any way to overcome the text.  The power he asserts for the Vice President simply isn't there, and there's no grounds for implying it.  Sometimes, the text provides answers. (See also here on  a different power of the Vice President).

The Amendment does have a serious defect, though, as we found out in 1876.  What happens if two sets of electoral votes are submitted for a state?  This brings me to John Eastman's (in)famous memo to then-President Trump in January 2020.  My understanding is that Professor Eastman made a very limited claim: that if two sets of electoral votes were submitted for a state, the Vice President could refuse to count either of them.

This might be right, although I'm not sure of it.  Assume that the Amendment does give the Vice President the power to count the votes (as well as just opening the envelopes).  Obviously when confronted with two sets of votes from the same state, he must do something aside from merely counting; he can't count both sets, so either he has to decide which to count (a questionable enterprise, for the conflict of interest reasons noted above), or he has to decline to count either.  The Eastman memo says (on constitutional grounds) he should take the second option.

Whether or not that's right, it has nothing to do with what actually happened, because no competing sets of votes were transmitted.  Thus, to the extent Trump is relying on Eastman's advice, his reliance is misplaced: Trump is wrong even if Eastman is right.

RELATED: For a fun-to-read assessment of the Constitution and the Electoral Count Act (that I don't entirely agree with), see here from Gary Lawson and Jack Beermann.

ANDREW HYMAN ADDS: In 2004, Bruce Ackerman and David Fontana investigated the electoral vote counts for the elections of 1796 and 1800 and found that the vice-presidents at that time (Adams and Jefferson respectively) may not have performed their counts in an exactly ministerial manner.  But it was a lot more ministerial than what President Trump was hoping Vice-President Pence would do.  See Thomas Jefferson Counts Himself into the Presidency.  I generally agree that Pence did the right thing, absent any state sending competing slates of electors, or any official request by a state to do anything other than what Pence did.  Pence did not have a lot of room to legally do anything else.

02/06/2022

A Comment on John Vlahoplus on Ratification of the Equal Rights Amendment [Updated with a Response]
David Weisberg

This is a comment on the post of John Vlahoplus, “Ratification of the Equal Rights Amendment:  A Reply to Opponents.”  He notes that Article V recites that amendments shall be valid

“when ratified by . . . three fourths of the several States,” not “when ratified and not rescinded” by them.  A state can no more rescind its ratification than separately condition it on the three quarters threshold being reached by a deadline of the state’s own choosing…[S]tate rescissions are ineffective.

I think a ratification can effectively be rescinded, for the following reason.

Article II, Section 2, Clause 2 gives the President the power to make treaties, with the approval of two-thirds of the Senate.  Suppose the Senate votes on a treaty, and it fails of two-thirds approval by one vote.  Sometime later, with all the same Senators present, it is voted on again.  Again, it fails by one vote, but one of the Senators who voted “yea” the first time votes “nay” the second time, and one of the Senators who voted “nay” the first time votes “yea” the second time.  Could that new “yea” on the second vote be added to all the “yeas” on the first vote to create the necessary two-thirds concurrence?  After all, the relevant language is: “provided two thirds of the Senators present concur”; it is not: “provided two thirds of the Senators present concur in a single roll-call vote”.

The Framers were fully familiar with two very different phenomena: sometimes an individual legislator changes his or her mind, and sometimes a legislature changes its collective mind.  It is now and was then a commonplace that, if an individual legislator votes, e.g., "nay" and then changes his or her mind and votes "yea" on the same question on a second roll call, the "yea" on the second roll-call does not change the fact that, on the first roll-call, the legislator voted "nay".  The legislator is now a "yea" even though previously an "nay", but the "yea" on the second roll call does not erase the "nay" that was recorded on the first roll call.

It is and was a similar commonplace that legislatures as a whole may actually cancel or erase actions they have previously taken.  Statutes are repealed routinely.  The repeal of a statute (unlike a legislator’s different second vote) does effectively erase from the law books the legislature's previous act of enacting the statute.  It is true that Article V does not say: “when ratified and not rescinded.”  But what is much more important is that Article V does not contain any language prohibiting a state legislature from rescinding its ratification.   This is more important because the Framers certainly understood that legislatures routinely reverse themselves by repealing statutes, with the effect of erasing those statutes from the books.   So, if the Framers wanted to prohibit a state legislature from rescinding its ratification, one would expect that Article V would explicitly prohibit such a rescission.

I think the most reasonable understanding of Article V is that three-fourths of the state legislatures would all have to ratify a proposed amendment contemporaneously, and that rescission by any state legislature, before the three-fourths margin had been attained, would effectively cancel that state’s ratification.  It makes no more sense to put in the “ratification” column a state whose legislature has explicitly rescinded that ratification than it does to add votes from different roll calls together to attain a super-majority.  

JOHN VLAHOPLUS RESPONDS:  May Congress rescind its proposal of an amendment just before three quarters of the states have ratified?  Congress can also repeal its own statutes.  Or does "propose" simply mean "propose," with no take backs, and "ratified" simply mean "ratified," with no take backs?  The best interpretation of Article V may be that ratifications should be contemporaneous.  But is that the "original meaning" of the article?  No proposed amendment included a time limit until 1917.  The arguments against recognizing the ratification of the Equal Rights Amendment may be correct, but neither text nor history makes them so.

02/05/2022

Adrian Vermeule on Common Good Constitutionalism
Michael Ramsey

In the New York Times, Adrian Vermeule: Supreme Court Justices Have Forgotten What the Law Is For.  From the introduction:

The great promise of our legal system as understood by many modern theorists — that law can create a framework to reconcile plural interests in a diverse society — has manifestly failed. Instead the law has become ever more politically contested and bitterly divisive; the tolerance celebrated by the proponents of liberalism appears to be more science fiction than fact. Something has gone badly wrong: It is unclear, in America in 2022, what the point of the law is, what higher ends it should strive to attain. We have forgotten what law is for.

Today’s reigning theories of law are exhausted. On one side, legal progressivism shamelessly instrumentalizes the law in the service of a particular vision of social justice centered on identity politics and libertine social and sexual mores. This relentless crusade undermines the family, traditional morality and the well-being of the citizenry — especially those who lack the resources to buffer themselves against societal disintegration.

On the other side, originalism, which pretends to separate law from justice, rests on an invented tradition that has projected itself back into the past. As the historian Jonathan Gienapp puts it, originalists’ understanding of the Constitution is “anachronistic, a species of modern constitutional thinking that they unwittingly and uncritically impose on the eighteenth century.” Supposedly originalist judges constantly appeal, explicitly or implicitly, to a contemporary view of justice to fix the meaning of general or abstract texts (like “due process of law” or “freedom of speech”) or otherwise to resolve hard cases.

And from later on:

What’s missing from our law today is an emphasis on the common good, a concept that from the founding era onward was central to the American legal tradition, embodied in the references to the “general welfare” in both the preamble to the Constitution and its text. The classical legal tradition, the mainstream of the Western legal tradition until the 20th century, holds that laws should be interpreted in light of the legitimate aim of government, which is the flourishing of the community as a community. Classical constitutionalism holds that our political community can succeed only as a whole, rather than as a collection of warring interests, competing ideologies and isolated individuals — the underlying logic of modern jurisprudence. The aim of constitutional government and legal interpretation should be to promote the classical ideals of peace, justice and abundance.

The common good is no abstract idea; its absence is keenly felt today. In the past few decades, Americans have discovered that individuals and families cannot flourish if the whole community is fundamentally unhealthy, torn apart by conflict, lawlessness, poverty, pollution, sickness, and despair. Gated residences, private schools and Uber have not sufficed to immunize even the affluent against the consequences of living in a decaying, fractured and embittered polity. No family or civic association is an island, and the health of civic society and culture are themselves dependent upon the health of the constitutional order.

A note accompanying the essay says the Professor Vermeule has a forthcoming book called "Common Good Constitutionalism."  I look forward to reading it, because so far I confess that I am entirely unable to understand how his program is anything other than "courts should rule in accordance with my moral intuitions because that's best for everyone."  For example, in a part of the New York Times essay not quoted above, he complains about Justice Gorsuch's opinion in the Bostock case.  But I don't see that common good constitutionalism explains how Bostock should have been decided (though I bet if I knew what his moral position on private sexual orientation discrimination is, I would know how he thinks it should have been decided).  And, though I agree on the need to improve the health of the constitutional order, I don't see how a jurisprudence of common good is going to provide a remedy where there is no agreement on what constitutes the common good.

Though I have no easy solutions to the health of the constitutional order, I would guess that empowering judges to aggressively pursue the common good (as they see it) is not the solution.  Instead, I might suggest (1) judges undertake to say what the law is rather than what it should be, and (2) when judges are unsure what the law is, they stay out of it.

(Thanks to Andrew Hyman for the pointer and for his thoughts on the common good constitutionalism project.)

02/04/2022

Jason Mazzone & Cem Tecimer: Interconstitutionalism
Michael Ramsey

Jason Mazzone (University of Illinois College of Law) & Cem Tecimer (S.J.D. candidate, Harvard Law School) have posted Interconstitutionalism (74 pages) on SSRN.  Here is the abstract:

New constitutions aim to break from the past, but they rarely accomplish that goal. Instead, predecessor constitutions routinely impact how any new constitution is interpreted and applied. Past constitutions linger and hold influence—even when the new constitution is the product of revolution, civil war, or overthrow of oppressive rule. To explore this phenomenon, we take up a prevalent yet under-studied practice of constitutional interpretation that we call interconstitutionalism. By interconstitutionalism we mean the use of a polity’s antecedent constitution to generate meaning for that same polity’s current constitution. Courts and other interpreters regularly engage in interconstitutionalism, thereby keeping alive and influential the seemingly dead constitutions of the past. Interpretations of the U.S. Constitution regularly make use of the Articles of Confederation; state constitutional interpretation regularly involves comparison to and contrast with the state’s predecessor constitutions; and in foreign countries, too, past constitutions play a starring role in making sense of the nation’s current governing charter. The Article examines the multiple, and often surprising, dimensions of interconstitutional interpretive practices, drawing on examples from federal and state courts and also from courts abroad. Understanding interconstitutionalist practices informs and challenges existing accounts of constitutional interpretation and adjudication. It also sheds light on the very nature of constitutional governance. A core commitment of modern constitutionalism is self-rule: government by the people. But interconstitutionalist practices challenge the very possibility of constitutions as self-governing charters. Interconstitutionalism means that past constitutions, those written and adopted by other people, for another political system, and now superseded, continue to hold sway. And yet, as the Article concludes, interconstitutionalism shows a path forward for meaningful popular sovereignty and a basis for securing constitutional legitimacy.

An earlier version of this paper was presented at the University of San Diego's 12th Annual Hugh & Hazel Darling Foundation Originalism Works-in-Progress Conference last February.

02/03/2022

The Tie-Breaking Vice-President (Revisited)
Michael Ramsey

Back in 2020, when Republican had a narrow majority in the Senate, there was talk about whether the Vice President could break a tie on a Supreme Court nomination if the Senators were equally divided.  Now that the issue is more immediate with a 50-50 Senate, here's a quick revisiting of the issue.

In this essay, Professor Laurence Tribe argued, largely on originalist grounds, that the Vice President's tiebreaking power extends only to legislation, not to appointments.  In a point-by-point response, I found his arguments unpersuasive, concluding:

In sum, it's an interesting and worthwhile argument, but I think it fails to overcome the simple text.  Article I, Section 3 says that the Vice President, as President of the Senate, "shall have no Vote, unless they [the Senators] be equally divided."  It does not say that the Vice President has this voting power only as to Article I matters.  Rather, the Vice President has this voting power  whenever the Senators are equally divided.  Article I, Section 3 is about how the Senate operates -- not just as to powers in Article I, but generally.  Professor Tribe's contrary arguments aren't nothing (from an originalist perspective), but they aren't enough.

(Other originalist scholars at the time agreed, see Mike Rappaport here (calling it a "peculiar argument") and John McGinnis here.)

On re-reading, I am (with all due modesty of course) even more convinced that I'm right.  The text does not even hint at the distinction Professor Tribe proposes.  He cites various originalist sources purportedly in support (which I examined in my response linked above) -- but the short of it is that no one in the founding generation made anything close to Professor Tribe's distinction.  Nor, so far as I can tell, does he have any meaningful post-ratification practice on his side.  It may be true that no early Vice President ever broke a tie on an appointments matter (though I'm not sure about that), but that proves little unless the issue actually came up.  That is, we would need to see a situation where an early Vice President had an opportunity to break a tie on an appointments matter and the Vice President refused on constitutional grounds, or at least someone objected on constitutional grounds.  I'm pretty sure nothing like that ever happened (Professor Tribe doesn't claim it did).

In sum, I think there's no plausible originalist argument against vice-presidential tiebreaking on appointments.  I wonder about a living constitutionalist approach, though.  The Vice President has a very different character now from the Constitution's original design, thanks to the Twelfth Amendment and the development of the party system.  In the original design, the Vice President was the runner-up in the presidential election, and so presumably a rival of the President (as Jefferson was to Adams).  At minimum, the Vice President was not an automatic vote for the President's nominee.  Now, however, the Vice President is part of the President' team.  Giving the Vice President a tiebreaking vote amounts to giving the President a tiebreaking vote.  That's a lot more power for the President than the framers envisioned, and perhaps (depending on one's view) more than we want.  Shouldn't the situation be reevaluated in light of modern circumstances?  I'm unsure how a living constitutionalist deals with that argument.

RELATED: Dan McLaughlin at NRO, Yes, Kamala Harris Can Break a Senate Tie on Biden’s Supreme Court Pick (relying on textual and historical grounds, and also reporting that Professor Tribe is [sort of] sticking with his position).

A FURTHER THOUGHT:  People say that originalism can't resolve modern controversies, or that it's no more than a cover for Republican party policy preferences.  This strikes me a (yet another) important counterexample.

02/02/2022

Eric Segall Responds to John McGinnis on the Vaccine Mandate Case
Michael Ramsey

At Dorf on Law, Eric Segall:  Libertarianism as Constitutional Interpretation.  From the introduction:

Last week on the Law & Liberty Blog, Professor John McGinnis, a self-identified textualist-originalist, wrote a love letter to the Supreme Court about its decision in NFIB v. OSHAwhich invalidated OSHA's COVID vaccination rules[,] and to one of the most important constitutional law cases in history Youngstown Tube & Sheet Co. v. SawyerIn that case, the Supreme Court held that President Harry Truman could not seize the steel mills during the Korean War when a nationwide strike closed down the steel industry. The OSHA case is an administrative law case, whereas Youngstown is a constitutional one but the two decisions have one thing in common that McGinnis likes--courts striking down federal government actions during emergencies.

The title of McGinnis's post was "Jabbing the Administrative State." He wrote that the OSHA case may be "critically important" to the future of administrative law ...

McGinnis gives the game away by being so delighted about the Court cabining the "awesome authority of the administrative state to make impositions on our liberty." Others might believe that the OSHA regulations requiring employers with more than 100 employees to either have them vaccinated or masked/tested was an important step to protect the American people from a terrible pandemic--a step courts should not second guess...

And in conclusion:

... There is nothing in the Constitution, or its original meaning, suggesting that Congress's authority to delegate "major powers," to federal agencies, whatever that even means, [is limited by the Constitution]. It is certainly true that federal agencies can only issue rules consistent with Congressional delegations. But as Professors Julian Mortenson and Nicholas Bagley have demonstrated in a lengthy and important law review article, at the Founding, Congress gave federal agencies broad powers to make all kinds of important decisions. McGinnis, of course, does not address any of that history.

As a policy matter, Congress cannot legislate in detail and must rely, and has always relied, on federal agencies to carry out its broad ideals. We all want less pollution, but the changing nature of environmental threats--from climate change to the numerous causes of dirty air and water--are not issues Congress can stay on top of on a regular basis. So it delegates to experts, within parameters, sometimes quite broad, sometimes more narrow, the day-to-day responsibility of figuring out the best ways to fight environmental dangers. In a country of our size, with 50 states, and over 330 million people, there is no other way. Unless of course one believes, as do McGinnis and the Republican Party, that regulations in general are bad and that a free market is always or almost always, the best answer. But that choice has nothing to do with originalism or textualism. It is a naked policy preference. It is libertarianism as constitutional interpretation.

Perhaps, and it is certainly worth considering whether the Court's emerging "major powers" doctrine has appropriate originalist foundations.  But I think the intuition to distrust claims of vast open-ended delegation is more than a naked policy preference.  The framers weren't libertarians, but they were deeply concerned about unchecked lawmaking and about uniting executive and legislative power.  Thus they prescribed that only Congress would have lawmaking power (Art. 1, Sec. 1) and that Congress could only act by majorities in two distinct and separately elected chambers (Art. 1, Sec. 7) -- so that lawmaking would depend on a consensus of multiple people and institutions.  Modern delegations flout both limitations, at least in spirit.  When Congress shifts "major powers" of policymaking to executive agencies, it effectively places lawmaking power in the President.  Lawmaking thus is not separated from law execution and is not dependent on the deliberative consensus of elected representatives.

That's not to say, necessarily, that congressional delegation of "major powers" is unconstitutional.  Perhaps the Constitution does allow this end run of Article 1, Sections 1 and 7 -- either because the framers weren't worried about it or because they didn't think about it.  But the originalist presumption, I would say, is to the contrary until proven otherwise, not because of a non-originalist libertarianism but because of concerns that were central to the framers' design.

02/01/2022

Ratification of the Equal Rights Amendment:  A Reply to Opponents
John Vlahoplus

Art. I, § 2 of the Constitution provides that “[w]hen vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.”  In 1837, two state governors issued writs for special elections to fill vacancies in their House representation for a limited time period.  In deciding to seat the winners, the House voted almost unanimously that the purported time limits were unconstitutional.  As Rep. Legaré explained in part, the Constitution’s text gives the governor the power only “to issue a writ to fill a vacancy, without any limitation or condition.” 

In addition, almost all of the Representatives agreed that the House should disregard the purported limits as surplusage rather than invalidate the writs.  Rep. Legaré explained that “every analogy of law” and “every presumption of common sense” commands that the constitutionally issued writs be respected and the limits disregarded.  Rep. Haynes considered it a “waste of words” even to discuss the issue because the unconstitutional limits could not override “the full and free expression” of a state’s public will.  Contrary to Professor Michael Rappaport’s assertions here, both common sense and precedent support applying the severability doctrine to actions taken under the Constitution, even absent a severability clause in their texts.

Art. I, § 2 provides that the executive “shall issue Writs of Election.”  Art. V provides that Congress “shall propose Amendments.” Reading the texts consistently, the Constitution gives Congress only the power to propose amendments without limitations or conditions—Congress cannot limit a state’s power to consider the proposals fully and freely.  Reading the Art. V ratification text consistently, amendments are effective “when ratified by . . . three fourths of the several States,” not “when ratified and not rescinded” by them.  A state can no more rescind its ratification than separately condition it on the three quarters threshold being reached by a deadline of the state’s own choosing.  The time limit for ratifying the ERA is unconstitutional surplusage, and state rescissions are ineffective.  The Equal Rights Amendment is part of the Constitution—or not, if you agree with the plausible contrary interpretations of Andrew Hyman here, Professor Michael Ramsey here, or Professor Rappaport.

The debate illustrates interpretive problems from impliciture.  As Professor Lawrence Solum explains here at 1984–85, some texts may implicitly include closely related things.  For example, “You will get promoted if you work hard” may implicitly include the bracketed phrase “You will get promoted if [and only if] you work hard.”  However, there are many potential implicitures.  If one emphasizes “You,” the impliciture might be that you will be promoted if you work hard, but others—such as the employer’s relatives—will be promoted even if they do not.

Was Rep. Legaré correct to include the bracketed impliciture “the Executive Authority . . . shall [without limitation or condition] issue Writs of Election”?  Is it right to reject the bracketed impliciture “when ratified [and not rescinded] by . . . three fourths of the several States”?  The written words cannot answer the question, and underlying political principles might point to different answers.  May small states condition their ratifications on the most populous states also ratifying, to ensure approval of a supermajority of the people in addition to a supermajority of the states?  Should states be free to take their time to fully consider proposed amendments?  Or is a time limit appropriate to ensure a contemporaneous supermajority?  Should a state be able to rely on prior ratifications when determining whether to take the time to consider its own ratification decision?  Or should states be free to reconsider their ratifications as political winds change?  The text does not answer any of these questions.  Indeed, many Representatives voted to seat (or not to seat) the winners of the 1837 special elections on a variety of different rationales, as described here and posted here (from which much of the above discussion is drawn).  Those elections and the ratification of the Equal Rights Amendment illustrate yet again the indeterminacy of non-normative textualism in constitutional interpretation.