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30 posts from April 2022


Law & Liberty Symposium on Vermeule's Common Good Constitutionalism
Michael Ramsey

Law & Liberty has posted a symposium on Adrian Vermeule's Common Good ConstitutionalismA Return to Classical Law? Here are the contributions:

Originalism for the Common Good
John O. McGinnis

A Common Good Requires a Common People
Jesse Merriam

Uncommonly Bad Constitutionalism
James M. Patterson

Policing Common Good Constitutionalism
James R. Rogers

Classical Historicism?
Paul Seaton

From the introduction to John McGinnis's contribution:

Adrian Vermeule’s Common Good Constitution is a bracing, bold, and well-written defense of what he calls common good constitutionalism, with a corresponding assault on originalism. But for all its audacity and creativity, Vermeule’s theory will remain a minority view on the right for years to come. The originalist project it challenges has too much momentum to be derailed. The Supreme Court has a majority of originalist justices, and a considerable majority of the small band of legal academic conservatives are originalists. Moreover, the substantive results he favors—unlimited power in the federal legislature without any substantial restrictions on the administrative state—are indistinguishable from the left’s program for the structural constitution and remain anathema to the right.

This likely failure of common good constitutionalism is a good thing, because Vermeule is not persuasive. Ironically, to the extent that his theory affects the judicial landscape, it is likely to strengthen originalism by highlighting to the left the dangers of morally infused judging and by encouraging originalists to consider whether they have overlooked some background principles at work at the Founding that can help resolve constitutional ambiguity and vagueness within the framework of original meaning.

RELATED: Conor Casey (University of Liverpool School of Law & Social Justice) & Adrian Vermeule (Harvard Law School) have posted Argument By Slogan (Harvard Journal of Law & Public Policy: Per Curiam, forthcoming 2022) (19 pages) on SSRN.  Here is the abstract:

This short essay responds to several lectures and talks given by Chief Judge William Pryor Jr. of the United States Court of Appeals for the 11th Circuit critiquing common good constitutionalism. We demonstrate that the arguments advanced by Chief Judge Pryor in favor of originalism badly misfire, permit the very things Judge Pryor wants to rule out, and beg the critical questions about the classical tradition. In the end, they amount to little more than argument by slogan.


Federalist Society Executive Branch Review Conference Next Week
Michael Ramsey

The Federalist Society's Tenth Annual Executive Branch Review Conference will take place next Tuesday, 5/3, at the Mayflower Hotel in Washington D.C., and will be livestreamed at the conference webpage here.  The conference will feature talks by Senators Mike Lee and James Lankford, and panel sessions including:



Michael Showalter: Corpus Linguistics Criticisms of Heller Misuse Corpus Linguistics
Michael Ramsey

Michael Showalter (Independent) has posted Corpus Linguistics Criticisms of Heller Misuse Corpus Linguistics (SMU Law Review, forthcoming) (19 pages) on SSRN.  Here is the abstract:

A number of linguistics experts have asserted that new corpus-linguistics evidence undermines the U.S. Supreme Court’s conclusion in District of Columbia v. Heller that the Second Amendment phrase "keep and bear arms" means to possess and carry weapons. At the time of ratification, the term "bear arms" carried both an idiomatic sense meaning “to serve as a soldier” and a literal sense meaning “to carry weapons.” The Heller majority concluded that the Second Amendment uses the literal sense, partly because the idiomatic reading has the absurd implication of causing the Amendment to protect a right to serve as a soldier. In recent years, however, several commentators have concluded from corpus data that "bear arms" was used more often in the idiomatic military sense than the literal sense at the time of ratification. The commentators have argued that this undermines the Heller majority’s interpretation.

But these commentators have misused corpus linguistics. Corpus data comparing usage of the literal and idiomatic senses may be relevant if there is ambiguity as to which sense the Second Amendment uses, but most of the commentators do not even mention the Heller majority’s conclusion that there is no ambiguity because the idiomatic reading is absurd. And the Heller majority was right—traditional tools of interpretation establish that the idiomatic reading is not plausible. The commentators err by treating the corpus data as probative before establishing the existence of even a modest level of ambiguity. Compounding the problem, most of the commentators have compared uses of "bear arms" in military contexts versus nonmilitary contexts, but ambiguity can exist only with respect to distinct senses, not distinct contexts. In sum, the commentators have skipped step one (establish a degree of ambiguity) and botched step two (compare usage of the competing senses).

These multiple analytical errors highlight the need for caution when evaluating the claims of linguistics experts or examining corpus data. Amid a developing debate over the use of corpus linguistics in the law, this Essay is significant both for its Second Amendment implications and as an interpretive cautionary tale.

This strikes me as a important paper (without expressing any view on the merits) because some prominent authorities have argued in strong terms that the post-Heller development of corpus linguistics has greatly undermined Justice Scalia's textualist conclusions in Heller.  This paper takes on those arguments directly and provides an important counterpoint.


Mark Graber on Blackman & Tillman on Disqualification (with a Response from Blackman and Tillman)
Michel Ramsey

At Balkinization, Mark Graber: Legislative Primacy and the Fourteenth Amendment.  Fro the introduction:

Section 3 of the Fourteenth Amendment disqualifies from holding state or federal office any person who has participated in an insurrection or rebellion against the United States.  Josh Blackman and Seth Barrett Tillman maintain that the persons responsible for the Fourteenth Amendment thought that only Congress could implement Section 3 (“Only the Feds Could Disqualify Madison Cawthorn and Majorie Taylor Greene,” New York Times, April 20, 2022) [Ed.:  see here].  Their claims are technically correct, but grossly misleading with respect to the original understanding of the Fourteenth Amendment and false to American practice for more than one-hundred and thirty years.

Blackman and Tillman are right to note that the Republicans who drafted the Fourteenth Amendment believed that Congress was responsible for implementing Section 3.  They fail to inform their readers that those same Republicans believed that Congress was responsible for implementing the entire Fourteenth Amendment.  Section 3 was no different than what became the more popular Section 1, which includes the citizenship, privileges and immunities, due process, and equal protection clauses.  During the late nineteenth, twentieth and early twenty-first century, the Supreme Court without objection took on the primary responsibility for implementing Section 1. The justices have never suggested that Section 3 is an exception to this practice.

The persons responsible for the Fourteenth Amendment were committed to a practice we might call legislative primacy.  Congress was expected to take the lead implementing the post-Civil War Amendments by legislation.  Courts might examine the constitutionality of that legislation, but courts were not expected to play a major, if any role independently implementing the constitutional ban on slavery or the provisions of the Fourteenth Amendment.  Legislative primacy reflected both theory and practice in the 1860s.  Many leading Republicans believed that political parties, not courts, were the primary vehicles for constitutional meaning.  Abraham Lincoln in his first inaugural address insisted that the people through elections had the right to challenge Supreme Court decisions.  As important, a Supreme Court staffed by a number of holdovers from the tribunal that declared in Dred Scott v. Sandford (1856) former slaves could not be American citizens was hardly likely to lead a crusade for racial equality after the Civil War.  If the Fourteenth Amendment was going to be implemented, Congress would have to do the implementing.  Every member of Congress knew this.

And from further on:

When championing legislative primacy, no member of the Congress that drafted the Fourteenth Amendment distinguished between Section 1 and Section 3.  Neither the participants in the debate over the Civil Rights Act of 1875 nor the justices that decided Ex parte Virginia thought the rules for implementing Section 1 differed from Section 3.  No Supreme Court justice who has asserted independent power under Section 1 to strike down legislation has ever suggested that institutional responsibility for implementing Section 3 is different. 

There is no difference.  Judges who swear off implementing Section 3 are on principle obligated to swear off implementing Section 1.  This means liberals must abandon Roe v. Wade and conservatives must accept affirmation action and gun control laws.  Indeed, if we are to harken to calls to respect the original understanding of the Fourteenth Amendment, the same courts that refuse to disqualify persons from public office who participated in the January 6, 2021 insurrection will on principle be obligated to reverse the Supreme Court’s decision in Brown v. Board of Education (1954), which was also based on the independent judicial authority to interpret the Fourteenth Amendment Blackm[a]n and Tillman would have the courts abjure.

Professors Blackman and Tillman respond: A Reply to Mark Graber’s ‘Legislative Primacy and the Fourteenth Amendment’


Justice Gorsuch Plus 5 Say Brown v. Allen Was Dubious on Originalist Grounds
Michael Ramsey

In another potentially important originalist opinion from last week, Justice Gorsuch, writing for himself and five others in Brown v. Davenport, questioned the Court's 1953 habeas corpus decision in Brown v. Allen.  From his majority opinion:

Usually [i.e., historically], a prisoner could not use [habeas corpus] to challenge a final judgment of conviction issued by a court of competent jurisdiction. See, e.g., Opinion on the Writ of Habeas Corpus, Wilm. 77, 88, 97 Eng. Rep. 29, 36 (K. B. 1758). If the point of the writ was to ensure due process attended an individual’s confinement, a trial was generally considered proof he had received just that. See, e.g., Bushell’s Case, Vaugh. 135, 142–143, 124 Eng. Rep. 1006, 1009–1010 (C. P. 1670).

This traditional understanding extended from England to this country and persisted through much of our history. Asked to apply the Nation’s first habeas statute to a duly convicted prisoner, Chief Justice Marshall invoked the common-law rule that a judgment of conviction after trial was “conclusive on all the world.” Ex parte Watkins, 3 Pet. 193, 202–203 (1830). Acknowledging that Congress had authorized the Court to “inquire into the sufficiency of ” the cause of the petitioner’s detention, Marshall asked rhetorically, “is not that judgment in itself sufficient cause?” Id.,  at 202 (emphasis added); see also Ex parte Parks, 93 U. S. 18, 21–22 (1876); P. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 465–469 (1963) (Bator).

If the answer was nearly always yes, an important exception existed in both English and American law: A habeas court could grant relief if the court of conviction lacked jurisdiction over the defendant or his offense...

By 1953, however, federal habeas practice began to take on a very different shape. That year in Brown v. Allen this Court held that a state-court judgment “is not res judicata” in federal habeas proceedings with respect to a petitioner’s federal constitutional claims. 344 U. S. 443, 458 (1953). A state court may reject the petitioner’s claims after a fair hearing. No appellate court, including this one, may see fit to reverse that final judgment. Yet still, Brown suggested, a federal district court approaching the same case years later should be free to decide de novo whether the state court proceedings “resulted in a satisfactory conclusion” and to issue habeas relief if that conclusion is found wanting. Id., at 463; see also Wright, 505 U. S., at 287–288 (plurality opinion). The traditional distinction between jurisdictional defects and mere errors in adjudication no longer restrained federal habeas courts. Full-blown constitutional error correction became the order of the day.

As an aside, this is the way we learned Brown v. Allen in my federal courts class when I was in law school, except that it was regarded as a positive development.  Gorsuch doesn't call for it to be overruled, or even directly say it was wrongly decided, but he concludes that Brown v. Allen's reworking of habeas justifies later courts cutting back on the scope of the writ to compensate for Brown's expansion.

Justice Kagan had some sharp words in dissent: 

Because the majority begins with some law-chambers history, see ante, at 7–11, I do too—though fair warning: My discussion is no more relevant than the majority’s to the issue before us. Not surprisingly, neither of the parties to this small and legally mundane case thought it a suitable occasion for a from-Blackstone-onward theory of habeas practice. Yet the majority, unprompted, embarks on that project, perhaps hoping that the seeds it sows now will yield more succulent fruit in cases to come. In the majority’s story, post-conviction habeas relief was all but unavailable until the mid-20th century—when in an instant the Court in Brown v. Allen, 344 U. S. 443 (1953), upended the rules. That account repeats the views expressed in a recent concurrence, authored by the same Justice as today delivers the majority opinion. See Edwards v. Vannoy, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 2–8); id., at ___ (slip op., at 3) (Habeas historically “provided no recourse for a prisoner confined pursuant to a final judgment of conviction”). But the theory, in its fundamentals, is wrong. Federal courts long before Brown extended habeas relief to prisoners held in violation of the Constitution—even after a final conviction. ...


The majority tries to cram the many habeas decisions belying its position into a narrow jurisdictional “exception,” ante, at 8—but its effort does no more than reveal the peril of looking at history through a 21st-century lens. In the majority’s view, a habeas court could grant relief only “if the court of conviction lacked jurisdiction,” not if it committed “errors in adjudication.” Ante, at 8, 10. But some of the decisions the majority must contend with made no mention at all of the convicting (or sentencing) court’s jurisdiction. See, e.g., Wells, 18 How., at 308–315; Yick Wo, 118 U. S., at 365–374. And those that did so often used the word to mean something different from what it does today. The concept of “jurisdictional defects” (ante, at 9) could at that time include—rather than contrast with—constitutional errors of the kind described above.1 As one legal historian puts the point: The jurisdictional inquiry was then (though of course not now) often “merits based.” A. Woolhandler, Demodeling Habeas, 45 Stan. L. Rev. 575, 630 (1993).

She also relied in part on a forthcoming academic article -- from her footnote 2:

A forthcoming article makes much the same point in addressing the concurrence that anticipated today’s historical musings. See supra, at 2; Edwards v. Vannoy, 593 U. S. ___, ___–___ (2021) (GORSUCH, J., concurring) (slip op., at 2–8). Professor Jonathan Siegel writes that the concurrence “relies on quotations” invoking a court’s jurisdiction “without fully acknowledging the meaning that they had in their original context. [It] incorrectly ascribes to these quotations the meaning they might have if a court wrote them today. One must, however, always remember that
‘the past is a foreign country; they do things differently there.’ Historical statements must be understood in their historical context.” Habeas, History, and Hermeneutics, 64 Ariz. L. Rev. (forthcoming 2022) (draft, at 4), https://ssrn.com/abstract=3899955 (footnote omitted).


Owen Gallogly: Equity's Constitutional Source
Michael Ramsey

Owen Gallogly (Harvard Law School) has posted Equity's Constitutional Source (Yale Law Journal, forthcoming 2023) (89 pages) on SSRN.  Here is the abstract:

Over the past three decades, the Supreme Court has led a historicist revolution in equity jurisprudence. In a series of decisions known as the “new equity” cases, the Court has sought to limit federal equitable remedies to the forms of relief typically issued by the English Court of Chancery at the Founding. It has read this stringent limitation into various federal statutes that refer to equity—from ERISA to the Judiciary Act. But these cases miss the mark on their own quasi-originalist terms. By focusing on statutes as the basis for the judiciary’s power to grant equitable relief, the Court has overlooked the underlying source of that power—the provision of Article III that extends “the judicial Power” to cases in “Equity.”

This Article uncovers federal equity’s constitutional source. Applying the Supreme Court’s historically-inflected methodology, it argues that “the judicial Power” in “Equity” is best understood as vesting the federal courts with inherent power to grant equitable relief. That power is coextensive with the remedial authority of the Founding-era English Chancellor. Put simply, Article III empowers the courts to apply the system of equitable remedies that was administered by the Court of Chancery in 1789 as the baseline of federal equity power. Thus, absent express Congressional action altering this system (which is rare), it is Article III itself—not federal statutes—that supplies authority for and defines the limits of federal equity.

Returning equity to its constitutional source suggests that the judiciary has greater leeway to develop the federal system of equitable remedies than the Court’s time-bound new equity cases seem to permit. To be sure, the remedial power incorporated by Article III was not illimitably flexible. Founding-era Chancellors were bound by settled rules from which they did not depart absent legislative authorization. But nor was it fixed in time. Chancery could elaborate the system of equitable remedies in a gradual, accretive, precedent-based way. Article III vests an equivalent power in the federal courts. By ignoring this power and instead tying federal equity to particular statutes, the Court has, in the name of fidelity to history, adopted an ahistorical, cramped understanding of the federal equity power.

Via Larry Solum at Legal Theory Blog, where it is "Download of the week."


Justice Thomas Says Reconsider Bolling v. Sharpe on Originalist Grounds
Michael Ramsey

As I noted yesterday, both Justice Thomas and Justice Gorsuch has interesting originalist concurrences in the Supreme Court's recent decision in United States v. Vaello Madero.  I discussed Justice Gorsuch's opinion in my prior post; here are a few words on Justice Thomas' concurrence.

Thomas' target is Bolling v. Sharpe, the companion case to Brown v. Board of Education that ruled segregation unconstitutional in the District of Columbia.  Thomas makes two points: (1) Bolling was wrong to find an equal treatment obligation on the federal government in the Fifth Amendment's due process clause; and (2) there (probably) is such an obligation from the citizenship clause of the Fourteenth Amendment.

As to the first point, he begins: 

Bolling’s locating of an equal protection guarantee in the Fifth Amendment’s Due Process Clause raises substantial questions. First, Bolling’s interpretation seemingly relies upon the Lochner-era theory that “unreasonable discrimination” is “a denial of due process of law.” 347 U. S., at 499 (citing Buchanan v. Warley, 245 U. S. 60 (1917)); see also 347 U. S., at 500 (“Segregation in public education is not reasonably related to any proper governmental objective” and therefore “constitutes an arbitrary deprivation of . . . liberty”); see Lochner v. New York, 198 U. S. 45 (1905). By invoking “due process” to hold an allegedly “unreasonable” or “arbitrary” legislative classification unconstitutional, Bolling made clear that it was applying this Court’s “substantive due process” doctrine. See N. Chapman & M. McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1800 (2012) (“[W]hen the Court purports to evaluate whether a state’s interest is ‘legitimate’ or a ‘justif[ied]’ interference with a judge-made liberty, the result is no different in principle than in other modern substantive due process cases”).

But “[t]he notion that a constitutional provision that guarantees only ‘process’ before a person is deprived of life, liberty, or property could define the substance of those rights strains credulity for even the most casual user of
words.” McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment). Rather, “‘considerable historical evidence supports the position that “due process of law” was a separation-ofpowers concept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.’” Johnson v. United States, 576 U. S. 591, 623 (2015) (THOMAS, J., concurring in judgment) (quoting D. Currie, The Constitution in the Supreme Court: The First Hundred Years 1789–1888, p. 272 (1985)); see also In re Winship, 397 U. S. 358, 378–382 (1970) (Black, J., dissenting). And, to the extent that the Due Process Clause restrains the authority of Congress, it may, at most, prohibit Congress from authorizing the deprivation of a person’s life, liberty, or property without providing him the “customary procedures to which freemen were entitled by the old law of England.” Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 28 (1991) (Scalia, J., concurring in judgment) (internal quotation marks omitted); see also Murray’s Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856). Either way, the Fifth Amendment’s text and history provide little support for modern substantive due process doctrine.

And  further:

[A]lthough the Bolling Court claimed that its decision “d[id] not imply that [due process and equal protection] are always interchangeable phrases,” 347 U. S., at 499, its logic led this Court to later erase any distinction between them. We now maintain that the “equal protection obligations imposed by the Fifth and the Fourteenth Amendments [are] indistinguishable.” Adarand Constructors, Inc., 515 U. S., at 217; see also Sessions v. Morales-Santana, 582 U. S. ___, ___, n. 1 (2017) (slip op., at 2, n. 1). But if “due process of law” fully subsumed the guarantee of equal protection, it is unclear why §1 of the Fourteenth Amendment would redundantly state both requirements in consecutive Clauses. See, e.g., G. Maggs, Innovation in Constitutional Law, 86 Nw. U. L. Rev. 1038, 1053 (1992) (Maggs); R. Natelson, The Constitution and the Public Trust, 52 Buffalo L. Rev. 1077, 1174, n. 432 (2004); R. Primus, Bolling Alone, 104 Colum. L. Rev. 975, 976, n. 7 (2004).

On the second point: 

Even if the Due Process Clause has no equal protection component, the Constitution may still prohibit the Federal Government from discriminating on the basis of race, at least with respect to civil rights. While my conclusions remain tentative, I think that the textual source of that obligation may reside in the Fourteenth Amendment’s Citizenship Clause. That Clause provides: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Amdt. 14, §1, cl. 1. As I sketch out briefly below, considerable historical evidence suggests that the Citizenship Clause “was adopted against a longstanding political and legal tradition that closely associated the status of ‘citizenship’ with the entitlement to legal equality.” R. Williams, Originalism and the Other Desegregation Decision, 99 Va. L. Rev. 493, 501 (2013) (Williams); see also A. Amar, Intratextualism, 112 Harv. L. Rev. 747, 768–769 (1999). Thus, the Citizenship Clause could provide a firmer foundation for Bolling’s result than the Fifth Amendment’s Due Process Clause.

I think his first point is absolutely right.  Bolling is completely unpersuasive as an originalist matter.  The Bolling/Brown Justices wanted a particular result (because it would have been extremely awkward to order the South to desegregate and not order D.C. to do so).  They did not much care how they got to that result, and it shows.

Previously I've been skeptical of the second argument, but Justice Thomas makes a strong argument in the discussion that follows the introductory quote above.  In particular, it seems right to ask: what was the point of the Fourteenth Amendment's citizenship clause?  Obviously it was to overrule Dred Scott's indefensible holding that Americans of African descent could not be citizens.  But why did that matter so much?  Presumably the Amendment's framers did not really care whether Americans of African descent could bring diversity actions (the actual issue in Dred Scott).  They must have thought that being a U.S. citizen carried some important rights.  Perhaps those were just rights against the states -- but perhaps not; perhaps they did think (as Justice Thomas suggests) that being a U.S. citizen carries important rights, perhaps including the right of equal treatment, against the federal government as well.

As an aside, a noteworthy part of Justice Thomas' opinion is his engagement with academic originalist scholarship, including citations to originalist scholars too numerous to list. (I'll note though that he cites my colleague and co-blogger Michael Rappaport's article Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71 (2013)). 


Justice Gorsuch Says Overrule the Insular Cases on Originalist Grounds
Michael Ramsey

In United States v. Vaello-Madero, decided by the Supreme Court on Thursday, there was a straightforward 8-1 majority opinion (by Justice Kavanaugh) and two provocative originalist concurrences by Justices Thomas and Gorsuch. Here I'll discuss Gorsuch's concurrence and post separately on Justice Thomas' concurrence. 

Justice Gorsuch expressly called for the Court to overrule the Insular Cases, the early-twentieth-century series of decisions that -- on openly racist grounds -- denied full constitutional rights to residents of U.S. territories.  (This issue was in the background because the case challenged Congress' treatment of residents of Puerto Rico differently from mainland residents in the Supplemental Security Income program, although neither side called for the Insular Cases to be overruled).

From the beginning of the concurrence (footnotes omitted): 

A century ago in the Insular Cases, this Court held that the federal government could rule Puerto Rico and other Territories largely without regard to the Constitution. It is past time to acknowledge the gravity of this error and admit what we know to be true: The Insular Cases have no foundation in the Constitution and rest instead on racial stereotypes. They deserve no place in our law.


The flaws in the Insular Cases are as fundamental as they are shameful. Nothing in the Constitution speaks of “incorporated” and “unincorporated” Territories. Nothing in it extends to the latter only certain supposedly “fundamental” constitutional guarantees. Nothing in it authorizes judges to engage in the sordid business of segregating Territories and the people who live in them on the basis of race, ethnicity, or religion.

The Insular Cases can claim support in academic work of the period, ugly racial stereotypes, and the theories of social Darwinists. But they have no home in our Constitution or its original understanding. In this country, the federal government “deriv[es] its powers directly” from the sovereign people, McCulloch v. Maryland, 4 Wheat. 316, 404–405 (1819), and is empowered to act only in accord with the terms of the written Constitution the people have approved, Marbury v. Madison, 1 Cranch 137, 176–177 (1803). Empires and duchies in Europe may have subscribed to the “doctrine . . . that the people were made for kings, not kings for the people.” The Federalist No. 45, p. 289 (C. Rossiter ed. 1961) (J. Madison). “Monarchical and despotic governments” may possess the power to act “unrestrained by written constitutions.” Downes, 182 U. S., at 380 (Harlan, J., dissenting). But our Nation’s government “has no existence except by virtue of the Constitution,” and it may not ignore that charter in the Territories any more than it may in the States. Id., at 382. 

Agreed!  That has long been my view.  See, for example, this post: The Nonoriginalist Insular Cases, in which I call the Insular Cases "a nonoriginalist abomination."  Congratulations to originalist scholars Gary Lawson and Guy Seidman, whose outstanding and engaging book The Constitution of Empire is prominently cited.  And thanks to Justice Gorsuch for citing my article Originalism and Birthright Citizenship (in a "see also" cite in a footnote, but that's good enough for me).

I'd think there are five votes (maybe nine votes) to overrule the Insular Cases on originalist grounds if the issue gets to the Court.


Textualism Prevails (Unanimously) in Cassirer v. Thyssen-Bornemisza
Michael Ramsey

Yesterday the Supreme Court unanimously reversed the Ninth Circuit in Cassirer v. Thyssen-Bornemisza, in a (mostly) textualist opinion by Justice Kagan.  And rightly so.  From my previous post about the case:

[Cassirer] 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.) 

Justice Kagan's opinion follows similar textualist reasoning.  After quoting FSIA Section 1606, she writes:

So when a foreign state is not immune from suit, it is subject to the same rules of liability as a private party. Which is just to say that the substantive law applying to the latter also applies to the former. ... The provision thus ensures that a foreign state, if found ineligible for immunity, must answer for its conduct just as any other actor would.

And in so doing, Section 1606 also dictates the selection of a choice-of-law rule: It, too, must mirror the rule that
would apply in a similar suit between private parties. For only the same choice-of-law rule can guarantee use of the same substantive law—and thus (see above) guarantee the same liability. ...

In this case, then, Section 1606 requires the use of California’s choice-of-law rule—because that is the rule a court would use in comparable private litigation. Consider the just-hypothesized suit against a private museum for return of a piece of art, brought as this case was in California. The claims asserted (again, as in this case) turn only on state or foreign property law, with no substantive federal component. If the private suit were filed in state court, California’s choice-of-law rule would of course govern. And if the private suit were filed in federal court, under diversity-of-citizenship jurisdiction, the same would be true. According to long-settled precedent, a federal court sitting in diversity borrows the forum State’s choice-of-law rule. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U. S. 487, 496 (1941). So the private-museum suit would begin with the application of California’s choice-of-law rule, to decide on the governing substantive law. And if that choice-of-law rule applies in the private-museum suit, so too it must apply in the suit here, against the Foundation. That is the only way to ensure—as Section 1606 demands—that the Foundation, although a Spanish instrumentality, will be liable in the same way as a private party.

Agreed.  I'm especially pleased by this sharp rebuke of the Ninth Circuit panel, which (as I wrote before) was an excellent trio of rule-of-law-oriented judges who reached a bizarrely non-textual result.  Sometimes even the best judges get off track in cases with foreign affairs implications.  It's good to see this strong correction from the Supreme Court.


John Vlahoplus: Living Recipes . . . and Constitutions
Michael Ramsey

John Vlahoplus (independent) has posted Living Recipes . . . and Constitutions (98 Notre Dame L.Rev. Reflection (2022 forthcoming)) (12 pages) on SSRN.  Here is the abstract:

Professor Gary Lawson and Zachary Pohlman assert that we can only follow recipes and by analogy the Constitution by complying with the original public or authorial meaning of the instructions in their texts. Absent an instruction in the recipe’s text authorizing changes, any departure from historical meaning amends the recipe rather than follows it.

This response uses the works of renowned chefs to sketch a competing theory. Following a recipe requires a cook to consider many of the same factors as pluralist and living constitution theories of law including text, history, purpose, current circumstances, personal experience, and individual judgment. Even extensive directions in a recipe provide only a general guide to how the recipe works. They do not dictate an exact right way to follow it. You can still follow a recipe while cooking inexact amounts of ingredients at varying temperatures for differing times. You must use your own taste, sensibilities, and experience to respond in each moment to your particular environment, equipment, and ingredients with the overarching goal of producing quality food. As one chef explains: “You are not cooking carrots in general, but specifically these carrots, in this pot, on this stove.”

This response then illustrates how a living theory of following recipes applies analogously to the Constitution. Equal protection does not involve historical understandings of equality generally. It involves this person under this law in this set of contemporary social circumstances, and we must interpret equality using our own experience and sensibilities. Historical understandings do not dictate an exact right way to follow explicit numerical provisions in the Constitution either. We may use our experience and sensibilities to determine whether offenders who have received the constitutional benefit of reduced punishment because of their low mental age have attained to the minimums required to serve in Congress or the Presidency. One day we might have to use our experience and sensibilities to address the question of what age astronauts like Cooper in the film "Interstellar" have attained to after returning to Earth from high-speed travel through high-gravity environments.

Do cooks still follow recipes when they use their own taste, sensibilities, and experience to respond in each moment to their particular environment, equipment, and ingredients with the overarching goal of producing quality food? Renowned chefs say yes, Lawson and Pohlman no. When it comes to cooking, I’ll go with the chefs. And if the Constitution follows recipes, I’ll go with living constitutionalism as well.

Bon appétit, and bonae leges.