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41 posts from March 2022


Problems With Vermeule, Part 8: Vermeule’s Neglect of Intermediate Positions
Chris Green

(For parts 1, 2, 3, 4, 5, 6, and 7, see here and here and here and here and here and here and here.)

Vermeule claims categorically at page 2 that “all attempts to combine originalism with the classical view of law are ultimately incoherent, an attempt to mix oil and water.” But the book never makes good on this claim. He neglects two simple ways to incorporate traditional notions of justice and morality with binding original meaning.

Continue reading "Problems With Vermeule, Part 8: Vermeule’s Neglect of Intermediate Positions
Chris Green" »

Justice Clint Bolick: Principles of State Constitutional Interpretation
Michael Ramsey

Recently published, in the Federalist Society Review, Justice Clint Bolick (Arizona Supreme Court): Principles of State Constitutional Interpretation.  From the introduction (footnotes omitted):

State constitutionalism—the practice of state courts deciding cases on independent state constitutional grounds—is a vital yet underdeveloped attribute of American federalism. Our system of dual sovereignty ensures the capacity of state courts to interpret their own constitutions to provide greater protections for individual rights than the federal constitution. When they do so, their decisions are not subject to review by federal courts absent a federal issue.

The subject has received significant judicial and academic attention ever since U.S. Supreme Court Justice William J. Brennan, Jr., in a pair of trailblazing law review articles in 1970 and 1984, urged state courts to independently interpret their constitutions to elevate the protection of individual rights. Indeed, in the years leading up to his second article, Brennan counted over 250 state court decisions “holding that the constitutional minimums set by the United States Supreme Court were insufficient to satisfy the more stringent requirements of state constitutional law.”[4] On issues encompassing free speech, religious liberty, private property rights, due process, privacy, capital punishment, education, victims’ rights, and the rights of criminal defendants, state courts have frequently identified greater constitutional protections than their federal counterparts.

And yet the methodology of state constitutional interpretation remains largely unexamined. Rarely have state courts specified when they will interpret their state constitutions independently and how they will go about that task. As a result, the jurisprudence is inconsistent and confusing, and constitutional rights may not be protected to the extent the framers of our state constitutions intended. State court judges typically, and often correctly, blame practitioners for failing to raise and develop state constitutional arguments adequately. But if our jurisprudence lacks coherent methodology to determine whether and how to independently interpret our state constitutions, how can practitioners know when to raise such arguments and how to present them effectively?

Arizona jurisprudence is especially bereft of such coherent methodology. Sometimes we decide cases on independent state grounds, holding that certain state constitutional provisions provide greater protections than the federal constitution. In other cases, we interpret state constitutional provisions in lockstep with federal jurisprudence construing federal constitutional provisions, even where the language is starkly different.In one recent decision in which only state constitutional and statutory claims were raised, the majority nonetheless decided the case on the basis of federal precedents, reasoning that if the local ordinance at issue violated narrower federal constitutional constraints, it would necessarily also offend more protective state constitutional protection. What we have never done is to explain when or why we will take one approach or another, resulting in an entirely subjective, ad hoc approach that must be mystifying to the advocates who appear before us.

In this Article, I explain why it is important for state judges to vigorously enforce their constitutions and propose several principles of state constitutional interpretation that may help alleviate the current jurisprudential cacophony...


Problems With Vermeule, Part 7: Meaning, Application, and Euclid
Chris Green

(For parts 1, 2, 3, 4, 5, and 6, see here and here and here and here and here and here.)

I have noted before, in response to an online essay reprinted with relatively little change in his book at pages 124-28, that Vermeule’s praise of the 1926 case Euclid v. Ambler Realty is flatly inconsistent with the vitriol he directs toward originalism. Vermeule never reconciles his complaint about being “enslaved to the original meaning of the Constitution” (p. 36) with his love of Justice Sutherland, who insisted in Euclid itself that “the meaning of constitutional guaranties never varies,” and who in a later dissent followed Thomas Cooley in insisting that “giving to a written constitution a construction not warranted by the intention of its founders” would be “reckless disregard of official oath and public duty.”

Continue reading "Problems With Vermeule, Part 7: Meaning, Application, and Euclid
Chris Green" »

Josh Blackman on Last Week's Supreme Court Decisions
Michael Ramsey

At Volokh Conspiracy, Josh Blackman assesses two Supreme Court decisions from last week, Ramirez v. Collier and Houston Community College System v. Wilson:

Justice Kavanaugh Is Not Going To Lay A Hand On Employment Division v. Smith (on Justice Kavanaugh's concurrence in Ramirez)

Houston Community College v. Wilson Reaffirms That Elected Officials Have Free Speech Rights (on the unanimous opinion in Houston CCS v. Wilson)

As he describes, both opinions rely heavily on historical practice.  (See also this post on Ramirez from Mark Movsesian: Tradition and Compelling Interests in Religion Cases.)

I have several quick thoughts.

First, using tradition as part of constitutional interpretation is consistent with originalist principles as Justice Scalia understood them -- I discuss his use of post-ratification practice (often long-post-ratification practice) here.  I am a little less sure that it is consistent with textualist originalism.

Second, in any event, the decision in Wilson seems consistent with originalism because there isn't (to my knowledge) any practice pointing in the opposite direction.  Wilson objected to the Community College System's decision to censure him for his speech.  But no historical practice indicates that "the freedom of speech" included the right to be free from censure, as opposed to being free from actual adverse consequences.  

Third, as to Ramirez, this was a statutory claim under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which requires accommodation of religious practices absent a compelling state interest.  But I don't see what enumerated power allows Congress to regulate a state's treatment of state prisoners, unless Congress is enforcing rights under the Fourteenth Amendment.  The Court didn't address whether the state's treatment of Ramirez violated the free exercise clause.  Without finding the state's conduct unconstitutional, the application to RLUIPA to Ramirez's situation seems dubious at best.  I'm surprised Justice Thomas, who dissented on other grounds, didn't make this point at least as an aside.


Problems With Vermeule, Part 6: Dworkin, the Level of Generality Problem, and the Fourteenth Amendment
Chris Green

(For parts 1, 2, 3, 4, and 5, see here and here and here and here and here.)

The bulk of Vermeule’s attack on originalism is simply reliance on Ronald Dworkin’s 1990 response to Robert Bork’s Tempting of America, which Vermeule thinks “has never been successfully answered” (p. 95). Dworkin asked at what level of generality originalists should read the Fourteenth Amendment’s paradigm case of the constitutionalization of the Civil Rights Act of 1866. Should we read “deny to any person within its jurisdiction the equal protection of the laws” to cover (1) merely the specific rights in the Civil Rights Act of 1866, (2) other aspects of equality for African Americans in cases like Brown, (3) affirmative action in cases like Richmond v. Croson, or (4) equality more generally?

The level-of-generality complaint is a problem for those who look to history to resolve constitutional applications in a way that will be binding on interpreters. But for textualist originalists, who look not only to applications but instead to the meaning expressed by the text in its original context, the level-of-generality question has a simple answer: read original history at the level of generality expressed in the constitutional text.  Read history neither too narrowly (forbidding any departure from original applications) nor too broadly (tying ourselves only to original goals and purposes). The concepts expressed in the Constitution itself are the key.

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Chris Green" »

William Baude: Severability First Principles
Michael Ramsey

William Baude (University of Chicago - Law School) has posted Severability First Principles (Virginia Law Review, Vol. 109, 2023 forthcoming) (54 pages) on SSRN.  Here is the abstract:

The Supreme Court has decided a number of cases involving severability in the last decade, from NFIB v. Sebelius and Murphy v. NCAA to Seila Law v. CFPB, Barr v. AAPC, United States v. Arthrex, California v. Texas and Collins v. Yellen. The analysis has not been consistent, the Justices have not been able to agree, and the results have not been intuitive. Some of the Justices have proposed a revisionist approach, but they too have been unable to agree on what it requires.

This article proposes a return to first principles. Severability is a question of what the law is. Severability also includes two principles of constitutional law: that judges should enforce the law, and that the Constitution displaces ordinary law that is repugnant to it. And it also includes principles of non-constitutional law: that validly enacted statutes are law if they are not repugnant to the Constitution, that unenacted hopes and dreams are not, and that Congress may legislate for contingencies.

Much of the time, these principles lead to a simple bottom line: effectively complete severability, rebutted only by an inseverability clause or something else with the force of law. There are also harder cases where the bottom line is not so simple, but where the first principles of severability will nonetheless lead the way – the relevance of unconstitutional removal restrictions, the nonconstitutional law that re-solves unconstitutional combinations, and the relevance of severability to standing and other procedural questions.

At Legal Theory Blog, Larry Solum says: "Highly recommended.  An important contribution.  Download it while it's hot!"

Professor Baude presented an earlier version of this paper  at the 2022 Originalism Works-in-Progress conference in San Diego (with commentary from Tara Grove from the University of Alabama law school). It all sounded right to me -- and also, although the paper does not trumpet its originalism, I thought its analysis was entirely consistent with, and indeed probably compelled by, originalist principles.


Problems With Vermeule, Part 5: The Fourteenth Amendment, Lochner, and Harlan
Chris Green

(For parts 1, 2, 3, and 4, see here and here and here and here.)

Vermeule discusses several particular constitutional issues in some detail. It is exasperating, however, how little attention he gives to our Constitution itself. I will focus on the area on which I have specialized—the Fourteenth Amendment—and leave his claims about the separation of powers to others. Why exactly do states face significant restrictions with respect to civil rights? Vermeule never says. He says at page 38, “The sweeping generalities and famous ambiguities of our Constitution afford ample space for substantive moral readings that promote peace, justice, abundance, health, and safety, by means of just authority, solidarity, and subsidiarity.” The exact language of the Fourteenth Amendment is apparently already sufficiently “famous” that Vermeule need give it no attention at all.

Continue reading "Problems With Vermeule, Part 5: The Fourteenth Amendment, Lochner, and Harlan
Chris Green" »

Are the Indian Canons Illegitimate? A Textualist-Originalist Answer for Justice Alito
Evan D. Bernick

[Editor's note: For this guest post we welcome Evan D. Bernick, Assistant Professor of Law at Northern Illinois University College of Law.] 

Justice Samuel Alito caused a stir when at oral argument in Ysleta del Sur Pueblo v. Texas he questioned the legitimacy of an interpretive rule that requires judges to interpret legal texts in favor of Native Nations and people. After Anthony Yang, the assistant to the U.S. solicitor general (arguing in support of the Pueblo tribe), invoked the “Indian canon,” Alito pounced:

You refer to the Indian canon. Those who favor the interpretation of statutes to mean what the words of the statute are generally understood to mean have some question about some of these substantive canons.

Now some of them, like the Rule of Lenity, have a long history. What do you think is the basis for this Indian canon?

And when Yang responded that his position didn’t depend on the Indian canon, Alito continued:

What is the origin of this [canon]? Is it your — is it your argument that throughout history Congress has always framed statutes in a way that are favorable to Indian tribes?

This is a very big deal. There are 574 federally recognized Native Nations that govern land masses the size of states. There are over 4,000 treaties and statutes dealing with Native people and thousands of judicial decisions. “Indians” makes up an entire chapter of the United States Code.

And Indian law is in flux. In 2021 the Court in McGirt v. Oklahoma issued what may be the most pro-tribal-sovereignty decision ever to appear in the U.S. Reports, holding that nearly half of the state of Oklahoma (including the entire city of Tulsa) is a reservation of the Muscogee (Creek) Nation. But McGirt was a 5-4 decision; one member of the majority, Justice Ginsburg, has since deceased; and the Court will next term take up a case implicating the constitutionality of the Indian Child Welfare Act, a monumental piece of legislation that regulates all child custody proceedings involving Native children.

So, Justice Alito’s challenge to the Indian canon is important. But it hasn’t yet received an answer from a textualist-originalist standpoint. In this short essay, I’ll sketch one.

There really isn’t just one Indian canon. There exist several rules of interpretation that require favorable treatment of Native Nations and people. One requires that ambiguities in statutes be interpreted in favor of Native Nations and people. A second applies to ambiguities in treaties between Native Nations and the United States.  And a third requires that Congress clearly express in statutory text its intention to diminish or terminate a Native reservation.

These Indian canons have long been criticized by textualists and originalists. In A Matter of Interpretation, Justice Scalia disparaged them along with other “substantive” canons “that load the dice for or against a particular result” because they require judges to depart from what statutes “fairly say.”  And then-Professor Amy Coney Barrett suggested in an widely noted article that the Indian canons of statutory interpretation might be especially suspect because they developed fairly recently, in the early twentieth century.

In the latter article, Barrett noted Philip Frickey’s argument that the Indian canons rest on a firm political-theoretical foundation. Frickey contended that, at the Founding, Native Nations were regarded as nations, with attendant sovereignty; and canons of treaty and statutory construction that favor Native Nations and people recognize and reinforce that sovereignty. They do so by assuming that Native Nations, like other sovereigns, do not willingly make concessions that would undermine their political existence.

From a textualist-originalist standpoint, Frickey’s argument is vulnerable. It’s not clear where judges get the authority to create canons that promote political-theoretical values—even if those values shaped the Constitution’s text and structure. That’s why textualist and originalist skepticism of substantive canons isn’t limited to the Indian canons; it extends as well to federalism canons that require “unmistakably clear statements” before the sovereignty of states can be infringed.  

Then again, from a textualist-originalist standpoint, Indian law has long been a breeding ground for disorderly elements. It is populated with things that find no footing in constitutional text or structure; that constitute radical departures from Founding-era practices, relationships, and doctrines; and which textualists and originalists should not block out of view when evaluating the Indian canons. Among these things are the “plenary power” doctrine, developed in the late-nineteenth century, which gives the federal government virtually unchecked, exclusive power over Native Nations. With the ascendance of plenary power came the replacement of the consensual practice of treating with Native Nations with the imposition of federal statutes on their internal affairs.

As Robert Clinton provocatively put it, There is No Federal Supremacy Clause for Indian Tribes. No constitutional text hierarchically subordinates Native Nations and their laws to federal law. The only text that expressly delegates to the federal government any power respecting Native Nations at all is the Indian Commerce Clause, which grants Congress the authority “[t]o regulate Commerce . . . with the Indian Tribes.” Justice Clarence Thomas has raised doubts about whether this text can justify the plenary power to govern Native Nations that the Supreme Court has endorsed for over a hundred years. Originalist scholarship reinforces these doubts.

In particular, Lorraine Updike Toler’s meticulous parsing of the Constitution’s drafting history has yielded compelling evidence that the Framers intentionally omitted a clause that would have supplied broad authority, not only over trade with Native Nations but over external and internal Indian affairs. These affairs included war and peace, land acquisitions, protection, border policing,  gift giving, and the maintenance of legal relations between Natives and non-Natives. The Continental Congress had exercised such authority in the wake of the Revolution and under the Articles of Confederation.

It might be thought that the powers that would have conferred by the (nonexistent) Indian Affairs Clause are reserved to the states or the people of the U.S. by the Tenth Amendment. But neither the states or the people enjoyed broad, preexisting authority over Indian affairs to reserve. Native Nations stood as independent sovereign entities that did not delegate any power over their affairs to other sovereigns save by treaty. The Constitution did not alter this; in fact, Article VI indirectly strengthens tribal sovereignty by making treaties—including treaties with Native Nations—supreme over state law. It is telling that no new major legislation was enacted regarding Indian affairs until a century after the Founding, whereas hundreds of treaties were negotiated in that time.

Of course, that is not our world. Today, reams of federal statutes regulate Indian affairs, and the U.S. does not make treaties with Native Nations. Since 1871, federal law has prohibited the U.S. from treating with Native Nations. And in a series of decisions during the late-nineteenth century that—like similar decisions endorsing plenary power over immigration and newly acquired territories—reek of racism and colonialism, the Court upheld unilateral congressional interventions in Native Nations’ internal affairs on the basis of the “paramount authority of Congress over the Indian tribes, and of the duties imposed on the Government by their condition of dependency.” Subsequent interventions included outlawing Native religious and cultural practices; changing Native land-tenure systems from communal tribal ownership to individually owned allotments, with any “surplus,” unallotted land being sold to non-Indians; and removing Native children to boarding schools that were designed to eliminate tribal traditions, cultures and languages.

Which brings us back to the Indian canons. To reject them because they are relatively recent and load the dice in favor of Native Nations and people would be to assume a textualist-originalist Indian-law baseline from which the Indian canon supposedly departs. We should reject that assumption. The statutory canons are recent, yes; but so are the nontextualist, nonoriginalist doctrines and decisions that legitimate federal regulation of Indian affairs in the first place. The canons load the dice against the natural reading of statutory text, yes; but so, too, do the doctrines for which they compensate load the dice against natural readings of constitutional text.

A natural reading of the constitutional text would not give Congress the plenary power it currently enjoys over Native Nations. But Congress does currently have that power. And the Indian canons constrain its exercise in ways that (1) promote Native sovereignty by assuming that Nations do not lightly part with it; and (2) increase the chances that statutes will approximate arrangements to which Native Nations and people would have consented through treaty—as the original Constitution requires.

The ideal, first-best originalist path forward might involve transforming Indian law by eliminating the plenary-power doctrine altogether; holding unconstitutional the 1871 prohibition on treating with Native Nations; and restoring treaty-making. In the meantime, however, the Indian canons should be seen as instruments of second-best originalism. In a pervasively nontextualist, nonoriginalist area of law, they make it harder than it would otherwise be for the federal government to depart still further from constitutional text and original meaning and reduce the harm inflicted by previous departures. They should be retained.


Zachary Pohlman: Revisiting the Fried Chicken Recipe
Michael Ramsey

Zachary B. Pohlman (Independent) has posted Revisiting the Fried Chicken Recipe (98 Notre Dame Law Review Reflection (forthcoming 2022)) (14 pages) on SSRN.  Here is the abstract:

Twenty-five years ago, Gary Lawson introduced us to legal theory’s tastiest analogy. He told us about a late-eighteenth century recipe for making fried chicken and how we ought to interpret it. Lawson’s pithy essay has much to be praised. Yet, even twenty-five years later, there remains more to be said about legal theory’s most famous recipe. In particular, there remains much more to be said about the recipe’s author, a person (or, perhaps, group of people) whom Lawson does not discuss. Lawson’s analysis of the recipe leads him to an “obvious” conclusion: the recipe’s meaning is its original public meaning. If we consider those who wrote the recipe and their joint act of recipe-writing, however, I question whether that conclusion remains so obvious. This Essay takes a closer look at the chefs who wrote the fried chicken recipe and their act of recipe-writing that produced it. I argue that the meaning of the fried chicken recipe is not its original public meaning but is rather the meaning the chefs intended the recipe to have, even on Lawson’s own terms.

The fried chicken paper is Gary Lawson, On Reading Recipes . . . and Constitutions, 85 Georgetown L.J. 1823 (1997).

Via Larry Solum at Legal Theory Blog, who comments: "Recommended.  Pohlman notes the crucial importance of what are called "second-order communicative intentions" in theoretical linguistics and the philosophy of language, although he does not use that terminology."


Randy Barnett on Judge Jackson and Originalism
Michael Ramsey

In the Wall Street Journal, Randy Barnett: Ketanji Brown Jackson and the Triumph of Originalism - Biden’s Supreme Court nominee comes close to endorsing the philosophy that sank Robert Bork in 1987.  From the introduction: 

Judge Ketanji Brown Jackson may not be an originalist, but she sounded like one in her confirmation hearings this week. “I believe that the Constitution is fixed in its meaning,” she said on Tuesday. “I believe that it’s appropriate to look at the original intent, original public meaning, of the words when one is trying to assess because, again, that’s a limitation on my authority to import my own policy.”

Even a nominee chosen by a Democratic president and facing a Democratic Senate felt it was necessary to say that she would adhere to the original public meaning of the text. To appreciate the significance of this development requires a bit of history.

Robert Bork described himself explicitly as an “originalist” when President Reagan nominated him to the high court in 1987. Democratic senators characterized originalism as a dangerously reactionary philosophy that would “turn back the clock” on civil rights and liberties. After the Senate rejected Bork, no Republican nominee adopted the label “originalist” until Neil Gorsuch, 30 years later. Since 2017, however, Brett Kavanaugh and Amy Coney Barrett also explicitly identified as originalists.

And in conclusion:

Why does this matter? First and foremost, it legitimates originalism. “The prevailing interpretive frame for interpreting the Constitution is now very clearly looking back through history,” Judge Jackson testified. “That is now the way in which constitutional interpretation is done.” As Ed Whelan of the Ethics and Public Policy Center observed: “When the next Republican president nominates the next conservative nominee, it’s going to be very difficult for Dems to object that the nominee is an originalist.”

“We are all originalists,” Elena Kagan said during her 2010 confirmation hearings. Many discounted that pronouncement because she seemed to limit originalism to the “very specific rules” in the Constitution. Judge Jackson’s pronouncement was less conditional; her description of originalism was more specific and sweeping. Whether or not Judge Jackson adheres to originalism on the high court, she has affirmed that it is the norm.

Also, from the Wall Street Journal's editorial board: Ketanji Brown Jackson and Antonin Scalia - She professes—at least for now—the late Justice’s philosophy of original meaning.  It begins:

We’re all originalists now, apparently. “I believe that the Constitution is fixed in its meaning,” Judge Ketanji Brown Jackson told the Senate during her Supreme Court confirmation hearings this week. “I believe that it’s appropriate to look at the original intent, original public meaning of the words.” She called it “a limitation on my authority to import my own policy views.”

Somewhere Justice Antonin Scalia must be singing, as he was known to do before he ascended. The great Scalia, who brought originalism to the fore before his death in 2016, might furrow his brow at the word “intent,” since his judicial philosophy was to examine the plain meaning of words, not to divine what James Madison was really thinking.

Yet Judge Jackson’s comment is a mark of Scalia’s influence. He once joked that originalism was viewed as a “weird affliction that seizes some people—‘When did you first start eating human flesh?’” Now even Judge Jackson, whom President Biden expects to be a reliable liberal vote, wants to be seen as a believer.

Related, Ed Whelan at NRO Bench Memos: KBJ’s Implausible Claim to Be an Originalist, concluding:

There are of course various claimants to the mantle of originalism, some more plausible than others. For present purposes, I will simply note that just as no liberal supporter of Jackson believes that she is an acolyte of Justice Scalia, no Republican senator should be expected to believe that either.