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41 posts from March 2022


Problems With Vermeule, Part 4: American Contingency and the Oath
Chris Green

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

To understand the nature of the American Constitution, we have to attend to particular ways in which our Constitution situates itself. For instance, the constitutional convention situated the Constitution spatially by using the phrase “the preceeding Constitution” to refer to the constitutional text. It situated itself temporally by using “now” to refer to the time of the Founding, and distinguishing between “ourselves” and “our Posterity” in the Preamble. See here and here and here for much more on the details, none of which Vermeule mentions at all.

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Chris Green" »

The Ninth Amendment Contains a Huge Clue About What the Unamended Constitution Meant
Andrew Hyman

The Ninth Amendment is back in the news.  Senator John Cornyn brought it up this week, and asked Supreme Court nominee Judge Ketanji Jackson, “What other unenumerated rights are out there?”  She replied, “It’s a hypothetical that I’m not in a position to comment on.”  It was a good question.

Ed Whelan is correct that the Ninth Amendment is not a source of judicially enforceable rights.  Ed is a conservative, but his view should not be controversial; it is also common even among liberal and libertarian law professors.  For example, Professor Tribe (a liberal) has said, “The Ninth Amendment is not a source of rights as such; it is simply a rule about how to read the Constitution.”  Professor Barnett (a libertarian) has likewise said: “The purpose of the Ninth Amendment was to ensure that all individual natural rights had the same stature and force after some of them were enumerated as they had before.”  Even so, the Ninth Amendment can tell us a lot about what the original unamended Constitution was understood to have meant.

According to most conservative scholars, the original unamended Constitution meant that the enumerated powers *could* be used (or misused) to deny or disparage unenumerated fundamental rights within the scope of those enumerated powers.  Most libertarian scholars disagree, and argue that the original unamended Constitution meant the  enumerated powers *could not* be used (or misused) to deny or disparage unenumerated fundamental rights within the scope of those enumerated powers.  

This debate between the conservative and libertarian views has been going on for a long time.  Isn’t it peculiar that the Ninth Amendment chose to safeguard various unenumerated rights from misinterpretation of the enumerated *rights*, but not from misinterpretation of the enumerated *powers*?  Doesn’t the founders’ zeal to accomplish the former imply that they also would have done the latter if they really meant for the unamended Constitution to carve out unenumerated exceptions to the enumerated powers?

It was a common view in the eighteenth century that legislators had a key role to play in protecting the people’s fundamental natural rights.  Even today, courts very rarely think themselves constitutionally empowered to protect unenumerated fundamental natural rights from violation by private citizens, without legislative authority. Indeed, William Blackstone wrote in his famous Commentaries that every law declares rights to be observed and wrongs to be eschewed, and "this depends not so much upon the law of revelation or of nature, as upon the wisdom and will of the legislator.” In every instance where the U.S. Constitution meant to supplant the wisdom and will of legislators with the wisdom of judges, it did so while providing some intelligible constraint.  Certainly the Ninth Amendment is an intelligible constraint, but there is no corresponding intelligible constraint in the Constitution as to unenumerated rights that purportedly limit how the enumerated powers are construed.

Incidentally, the Ninth Amendment is not itself part of the Constitution’s enumeration of certain rights.  Rather, it is a rule of construction.  Thus, it is permitted to construe it in a way that ends up denying or disparaging (or limiting) other rights retained by the people.  Not just permitted, but required.  Thus, throughout the 50 states, the unenumerated constitutional rights applicable against the federal government are limited to ones that are outside the subject matter of the enumerated powers, but they are not trivial and include countless natural rights applicable outside federal enclaves and the nation’s capital.


Problems With Vermeule, Part 3: Failure to Contend With American Contingencies
Chris Green

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

Another big problem with Vermeule’s book is that it repeatedly equates originalism with positivism. E.g., page 15: originalism is “essentially a form of positivism.”  But this is a mistake. Positivism is a theory about the nature of law, but originalism is a theory about the nature of the American Constitution. These are very different sorts of objects of inquiry, because lots of countries have law though they lack a Constitution like ours.

Ronald Dworkin’s 1990 response to Robert Bork, on which Vermeule places extraordinarily heavy reliance in his book, makes clear that the issue over originalism is not over the general nature of the law, but over the nature of our American Constitution. Dworkin, of course, wrote a great deal about the nature of law, and the Hart-Dworkin debates are still a staple for those thinking about jurisprudence. But Dworkin never discusses positivism in his response to Bork. He notes the key issue at p. 659 of his review: “Bork subscribes to one answer to the question of what the Constitution is.” Dworkin, of course, does not like this view, noting the greater scholarly popularity of “law professors [who] believe that the Constitution is incomplete or open-ended,” or others who think (p. 660) “that the Constitution, properly understood, is not so much open-ended as structural,” or others (probably including Dworkin himself here) who “think the Constitution, on the best interpretation, is abstract: that it lays down general moral principles that contemporary lawyers, judges, and citizens must apply by finding the best answers to the moral questions these abstract principles pose.” Dworkin is absolutely right that the issue whether originalism is correct, and if so what form of originalism, is a question of American constitutional ontology, not jurisprudence: what renders American constitutional claims true, not the nature of law.

Continue reading "Problems With Vermeule, Part 3: Failure to Contend With American Contingencies
Chris Green" »

Dan McLaughlin on Originalism and the Jackson Hearings
Michael Ramsey

At NRO, Dan McLaughlin: Justice Scalia Won.  From the introduction: 

Antonin Scalia may not have lived to reach the promised land, but he won the argument. That is the clear takeaway from the first round of questioning of Judge Ketanji Brown Jackson in her Supreme Court confirmation hearing Tuesday before the Senate Judiciary Committee.

Scalia did not invent constitutional originalism. Edwin Meese and Robert Bork both played important roles in advancing the concept in public, and numerous other scholars worked the vineyards of academia and the judiciary to make the idea intellectually respectable and rigorous. Others such as Clarence Thomas and Amy Coney Barrett have carried the flame of its arguments forward on the Supreme Court since Scalia’s death, sometimes (in the case of Thomas) with more stringency than Scalia himself. But Scalia was its most prominent, insistent, and eloquent exponent from the mid 1980s until his death in 2016. He was originalism’s prophet. Nobody was more identified with the argument than Scalia, who advanced it relentlessly in constitutional law and equally insistently under the label of textualism in approaching statutory law....

Originalism, in practice if not in name, was the predominant framework for interpreting the Constitution until Woodrow Wilson and the progressives advanced the idea of a “living Constitution.” ...

Wilson’s “living Constitution” has been the dogma of Democrats for a century since. But what do they have to say for it in public today, in a public hearing in an election year? Jackson would seem to be the best test case. She has been a regular attendee at conferences of the American Constitution Society and other gatherings of the foes of originalism. Nobody doubts that the Democratic Party and the progressive movement have closed ranks behind Judge Jackson. Left-wing groups such as Demand Justice have poured effort and resources into her confirmation. The people who object the loudest to originalism are all foursquare behind Jackson’s nomination. Nobody did more to organize political resistance to putting originalists on the Supreme Court during Scalia’s lifetime than Joe Biden, and Jackson is his first and possibly only choice for the Court. You would expect her to carry his rebuttal onto the public American stage.

And yet, when senators ask Judge Jackson in a nationally televised hearing to explain how judges should read the Constitution, in a hearing for a job to which she can be confirmed entirely with Democratic votes, she sounds an awful lot like Scalia and the originalists.

And in conclusion:

Is Jackson sincere? There are reasons in her record to be dubious, and if she is confirmed, we can’t and won’t truly know the answer until she is on the Court. But battles of ideas can never be won by those who refuse to fight them in a public forum. The marketplace of ideas is unforgiving to those who won’t sell their own wares. Even when offered the biggest possible public stage to discuss the proper interpretation of the Constitution, neither Judge Ketanji Brown Jackson nor her Democratic supporters could do better than to agree with Justice Scalia.

(Via SCOTUSblog.)


Problems With Vermeule, Part 2: Vermeule’s Claim That Originalism is Self-Refuting
Chris Green

(For part 1, see here.)

Vermeule makes six arguments for why originalism is self-refuting because the framers themselves were not originalists. Two of these arguments directly contradict each other, two are utterly devoid of historical support, and two are conceptually confused.

Before we look at Vermeule’s arguments, though, it is important to remember why we would care whether the framers themselves were originalists. We don’t follow the framers’ hairstyles or their views of science; why bother with their constitutional theory? The reason is that we still live under the Constitution that they designed, and unless we get reason to think otherwise, we should presume that the founders understood the nature of that Constitution. But it is our Constitution’s nature, not Madison or Marshall’s views as such, that we care about today.

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Chris Green" »

Danielle D'Onfro & Daniel Epps: The Fourth Amendment and General Law
Michael Ramsey

Danielle D'Onfro (Washington University in St. Louis - School of Law) & Daniel Epps (Washington University in St. Louis - School of Law) have posted The Fourth Amendment and General Law (132 Yale Law Journal, forthcoming 2023) (68 pages) on SSRN.  Here is the abstract:

For decades, Fourth Amendment protections have turned on “reasonable expectations of privacy.” But a new era may be dawning. There is growing interest among judges and scholars in turning away from privacy towards property or positive law as the touchstone for Fourth Amendment protections. Yet many questions remain about how that approach should work, such as where judges should look for positive law and precisely what role positive law should play in Fourth Amendment analysis.

This Article answers those questions, and in so doing lays forth a new, comprehensive theory of the Fourth Amendment. We argue that courts should interpret the Fourth Amendment’s protections by looking to “general law”—the common law that is under the control of no particular sovereign. Courts looking to general law would draw on ancient property concepts such as trespass, license, and bailments in determining the scope of protections. But they would also draw on custom, social practices, and modern legal developments to identify and flesh out common-law rules unknown at the Founding.

The general-law approach has numerous advantages over competitor theories. It makes more sense of the Fourth Amendment’s text and has deeper roots in its history. It is surprisingly easy to reconcile with a great deal of Fourth Amendment doctrine, while also suggesting important refinements in various areas. And it gives courts the flexibility to protect Fourth Amendment values in a changing world while also structuring and guiding the judicial task more than an untethered inquiry into privacy expectations. Private law, then, holds the key to understanding the Fourth Amendment’s limits on public power.


Problems With Vermeule, Part 1: Introduction
Chris Green

Adrian Vermeule’s new book, Common Good Constitutionalism, contains a number of attacks on the idea that the meaning expressed by the Constitution’s text in its original context is binding on officials today. He complains that we should not be “enslaved to the original meaning of the Constitution” (p. 36), but unlike modern progressives, he is not concerned with keeping the Constitution in step with today’s zeitgeist. Progressives complain that the meaning expressed by constitutional text in 1787, 1791 and 1868 is too old for us to care over-much about it, but Vermeule thinks that it is actually too young: we should instead look back to the likes of second- and third-century Roman jurist Ulpian and Thomas Aquinas to decide constitutional cases today.

While the book is very accessibly written and has a lot of clever quips, its lack of attention to issues of philosophical and historical detail is pretty frustrating. In future posts I’ll explain seven aspects of Vermeule’s inattention to detail:

Continue reading "Problems With Vermeule, Part 1: Introduction
Chris Green" »

Noah Feldman on Originalism and Textualism (with comments from Josh Blackman and me)
Michael Ramsey

At Bloomberg, Noah Feldman: Scalia’s Ghost Is Haunting Conservative Justices.  From the introduction: 

Three conservative Supreme Court justices declared this month that the Constitution should be read to give state legislatures unlimited control of electoral procedures, and a fourth said the issue is important enough for the whole court to consider. That’s scary because it could eventually block even state courts from stopping partisan cheating.

What’s most important about the issue, however, isn’t the remote (for now) danger that a majority of the court might make a disastrous decision that undermines democracy. It’s the new kind of reasoning that the conservatives are using to reach their preferred result.

It’s a legal theory that departs from the method of constitutional interpretation favored by a generation of conservative legal thinkers, originalism. That’s the idea championed by the late Justice Antonin Scalia that the intentions of the framers should determine the meaning of the Constitution.

Now some conservatives want to sideline originalism in favor of textualism, the literalist notion that the words of the Constitution have to be interpreted according to their dictionary meaning, even if the historical evidence clearly points in the opposite direction.

This theory is about to split the court’s conservatives. Right when a dominant conservative majority is poised to change the face of constitutional law, its members are starting to find they can’t agree on what the true conservative position should be.

The reason is a deep tension between two parts of Scalia’s jurisprudence: originalism, which says the Constitution means what its writers took it to mean, and textualism, which says words in a law should be understood according to their modern linguistic, or literal, meaning.

As a statement of Scalia's originalist jurisprudence, this is just completely wrong.  Scalia's view was absolutely not that "the intentions of the framers should determine the meaning of the Constitution." Scalia was instrumental in shifting from the older version of originalism, which sought the framers' intent, to the modern version of original public meaning.  That is such a conventional view of the historical development of originalist philosophy that I'm not even going to bother to link to sources.

Further, as a statement of Scalia's textualist jurisprudence, it's also just completely wrong.  Scalia's view was absolutely not that "words in a law should be understood according to their modern linguistic, or literal, meaning."  Just take just a quick glance at Scalia's Reading Law for a complete refutation of the idea.  An essential part of Scalia's textualism was that words should be understood according to their original meaning, not their modern meaning.  I challenge anyone to find anything in Scalia's writings that privileges modern meaning over original meaning.  That's why Scalia's opinions rely on old dictionaries, not modern dictionaries, in interpreting both old statutes and the Constitution.  There's no tension at all between Scalia's originalism and Scalia's textualism.  They are are two sides of the same coin: legal meaning (in his view) derives from the meaning of the relevant text at the time of its enactment.  (To be clear, I'm not saying there aren't any tensions in Scalia's jurisprudence, just that this isn't one of them.)

From later on:

In a sense, textualism is a form of anti-originalism. It stands for the idea that, to understand a law, you shouldn’t ask what the legislature meant to say or what the law’s purpose is. You should just look at what the law says. Textualists usually insist they aren’t literalists, following the words to absurd conclusions. But the embarrassing truth is that they have no convincing theory of how to avoid following the words literally, because they can’t rely on intent or purpose to say what result is absurd and what result isn’t.

Right about now, you might be asking, how could Scalia be both a textualist and an originalist? One theory advocates ignoring the history of a law’s enactment in ascertaining its meaning. The other says that history is decisive in interpretation.

The short answer is that Scalia himself claimed to distinguish statutory interpretation (use textualism!) from constitutional interpretation (use originalism!). He didn’t have a great answer for why this interpretive distinction should exist. The most charitable reconstruction of his view is that he always wanted to constrain judicial discretion. He believed, rather doubtfully, that historical originalism constrained judges by virtue of relying on historical facts. He believed that looking to legislative intent or purpose in reading statutes gave judges too much leeway.

Again, this analysis is fundamentally misconceived.  In Reading Law, Scalia makes no such distinction (nor do his judicial decisions).  He viewed constitutional interpretation and statutory interpretation as essentially the same enterprise -- hence the full title of his book is "Reading Law: The Interpretation of Legal Texts," not "Reading the Constitution" or "Reading Statutes."  It's true that Scalia's textualism "stands for the idea that, to understand a law, you shouldn’t ask what the legislature meant to say or what the law’s purpose is. You should just look at what the law says." But it says that you should look to what the law says, given the meaning of its words at the time of enactment, taking into account the context in which it was enacted.  That's true for both statutes and the Constitution. That's why this approach is often called (by me, anyway) "textualist originalism." The idea that Scalia had different approaches for different kinds of law has no foundation and unsurprisingly Professor Feldman cites nothing in support. 

At Volokh Conspiracy, Josh Blackman has some distinct but equally harsh comments on the essay, which I fully endorse: Noah Feldman is Haunted By Justice Scalia's Vote in Bush v. Gore.  Some excerpts:

I have long admired Noah Feldman as a sober arbiter of constitutional law. Recently, however, his writings have been littered with elemental mistakes and salacious speculations. Continuing the trend, Feldman's latest column left me scratching my head.

It is titled, "Scalia's Ghost Is Haunting Conservative Justices." The subhead is "The late Supreme Court giant united his philosophical heirs behind theories of originalism and textualism. Now those ideas are becoming a source of conflict." The thrust of the piece is that there is some tension between textualism and originalism, and the Court's conservatives are apparently dividing over that tension. ...

I've been studying originalism and textualism for some time. I have no idea what Feldman is talking about.

The hook of the column concerns the independent state legislature doctrine. And he posits that in Moore v. Harper, Justices Thomas, Alito, and Gorsuch departed from Justice Scalia's jurisprudence. ...

And, of course, Feldman offers heaps of praise on Justice Barrett who did not join her "radical" colleagues. ...

Mentioned nowhere in Feldman's column is an important fact:  Justice Scalia, as well as Justice Thomas, joined Chief Justice Rehnquist's concurrence in Bush v. Gore. This opinion was the fountainhead of the independent state legislature doctrine.


Feldman wrote a 1,900 word column arguing that Scalia would have rejected the independent state legislature doctrine, but did not mention that Scalia joined the opinion that endorsed that doctrine. 

I agree that the idea of a fundamental methodological conflict is Professor Feldman's invention.  On the independent state legislature theory, the short of it from an originalist perspective is that the Constitution says the state "Legislature" shall pick presidential electors and draw congressional districts.  The text's reference to the "Legislature" (as opposed to just the "State") must mean something, but what it means depends on the meaning that phrase had at the time it was enacted -- which in turn invites examination of historical context and practice.  I don't think any originalist would disagree (though of course there might be disagreements on what those sources indicate).


James Cleith Phillips & Jesse Egbert: A Corpus Linguistic Analysis of 'Foreign Tribunal'
Michael Ramsey

James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) & Jesse Egbert (Northern Arizona University) have posted A Corpus Linguistic Analysis of 'Foreign Tribunal' (Virginia Law Review Online) (29 pages) on SSRN.  Here is the abstract:

In March, the United States Supreme Court will hear ZF Automotive US v. Luxshare, a case involving the issue of whether a private arbitration panel is covered by the statutory phrase “foreign or international tribunal.” The statutory language, enacted in 1964, authorizes a federal district court to order witness testimony or production of evidence “for use in a proceeding in a foreign or international tribunal” if the witness or holder of the material resides or is found in the district. The Respondent here seeks to invoke this statutory authorization to assist them in private arbitration held in a foreign country.

At its core, this dispute hinges on a linguistic question: what did the term foreign tribunal mean in 1964? Petitioners argue that a foreign tribunal only refers to entities imbued with government or quasi-government authority. Respondent takes a broader view, arguing that foreign tribunal refers to any entity in a foreign country that can enter a decision and bind parties, even if that entity is purely private. The parties devote large chunks of their briefs to the underlying linguistic question, looking to dictionaries and various legal materials to support their position. But the parties’ attempts to divine the meaning of foreign tribunal suffer from shortcomings common to legal interpretation. This article turns to a tool that avoids these shortcomings and provides a more rigorous, objective, and transparent answer to the question at hand. That tool? Corpus linguistics.

Increasingly, our courts (including the U.S. Supreme Court) have looked to corpus linguistics to better answer the linguistic questions that judges face in interpreting the words of the law. Understandably. Judges use economic tools to tackle economic questions and historical tools to answer historical questions. Shouldn’t they use linguistic tools for linguistic questions? “[W]ords are … the material of which laws are made. Everything depends on our understanding of them.” We can and should use the right tools for seeking this understanding.

After sampling 259 usages of the terms foreign tribunal and foreign tribunals across collections of texts using both ordinary and legal American English—including U.S. Supreme Court and federal court opinions, the U.S. Code, and U.S. legal scholarship—the data overwhelmingly show that the term foreign tribunal(s) was used in the sense of an entity using government authority to resolve a dispute, almost always a court. While there may be additional considerations the Court should take into account in resolving the legal question before it, the linguistic question is very clear: the term foreign tribunal seldom referred to a private arbitration body in American English prior to 1965, and the entity that was referred to as conducting arbitration was usually called something other than a tribunal.

Query: if it's true that "the term foreign tribunal seldom referred to a private arbitration body in American English prior to 1965, and the entity that was referred to as conducting arbitration was usually called something other than a tribunal" (emphasis added), doesn't this mean that "the term foreign tribunal sometimes referred to a private arbitration body in American English prior to 1965, and the entity that was referred to as conducting arbitration was sometimes called a tribunal"?  And if that's true, then isn't that another way of saying that "foreign tribunal" could include both a court and a entity conducting arbitration?

[Update: Comment paragraph revised and corrected.]


John Golden & Thomas H. Lee: Federalism, Private Rights, and Article III Adjudication
Michael Ramsey

John M. Golden (University of Texas at Austin - School of Law) and Thomas H. Lee (Fordham University School of Law) have posted Federalism, Private Rights, and Article III Adjudication (108 Va. L. Rev. (2022 forthcoming)) (52 pages) on SSRN.  Here is the abstract:

This Article proposes a new federalism-grounded understanding of the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have traditionally been the primary deciders of lawsuits over private rights—historically defined as suits regarding “the liability of one individual to another under the law as defined.” If Congress could limitlessly assign adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to encroach on state courts’ traditional authority to decide common-law and equity cases between individuals. We argue that such vast congressional power is inconsistent with the limits on federal authority in a constitutional scheme in which Congress’s power of direct taxation and ability to create lower federal courts were hard-won concessions. Article III’s implicit constraints on congressional power to confer private rights cases on non-Article III federal tribunals effectively checks federal power to supplant state-court adjudication by requiring that adjudicative power over such cases go substantially to Article III courts, bodies constitutionally insulated from congressional control. The private rights/public rights distinction thus operationalizes a principle of constitutional federalism through the mechanism of federal-level separation of powers. Article III’s federalism underlay explains the Supreme Court’s special concern with non-Article III adjudication of state-law claims and of questions of “jurisdictional” fact—two doctrinal positions that have puzzled commentators focused on the threat that proliferation of non-Article III tribunals poses to the power of Article III courts, rather than to the power of state courts and local juries.