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34 posts from May 2022

05/31/2022

The Dobbs Draft and Stare Decisis: An Epistemic Approach to Integrating the Factors
Chris Green

The Dobbs draft opinion circulated at the Supreme Court in February and leaked to the press in April reads at many points like a shell intended for supplementation in response to concurrences and dissents. One place is footnote 22, in which the opinion very briefly confronts the Privileges or Immunities Clause, claiming that Corfield v. Coryell requires a tradition-based approach to identifying the privileges of citizens of the United States. A second is the issue of the precise significance under a tradition-based view of substantive rights of the prevalence of a right in 1868 as opposed to the existence of a consensus among states today. A third is the opinion’s discussion of stare decisis. The opinion does not attempt to characterize the general nature of stare decisis, but instead simply goes through all of the relevant factors and explains why none of them favor retaining Roe

The pressure of responding to a vigorous dissent will be likely to sharpen the precise ways in which these stare decisis factors work together. One approach that has appealed to an ideologically-diverse set of justices in the past might appeal to the Court in Dobbs. Justices Stevens, Breyer, Barrett, and Thomas have all put the stare decisis question into epistemic terms: is the error of an earlier decision sufficiently clear, given the reliance interests at stake? Stevens’s opinion in McDonald v. Chicago said that “the original meaning of the [Privileges or Immunities] Clause is … not nearly as clear as it would need to be to dislodge 137 years of precedent.” Justice Barrett wrote similarly as a professor: “The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach.” Justice Thomas in his Gamble opinion distinguished “textually permissible,” though possibly erroneous, precedent, from “demonstrably” erroneous earlier mistakes: “Federal courts may … adhere to an incorrect decision as precedent, but only when … the earlier decision adopted a textually permissible interpretation of the law … When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” Finally, Justice Breyer at the Dobbs oral argument noted that in a case with big reliance interests, “you better be damn sure that the normal … considerations … are really there in spades.”

If such a “better be damn sure” approach to the stare decisis factors were to emerge from the deliberations in Dobbs between now and the end of the term, what would things look like?  Under this sort of approach, reliance interests produced by a precedent would not alter our constitutional ontology: the truthmaking object of constitutional interpretation that renders constitutional claims true or false. The Constitution still is the Constitution, no matter what the Supreme Court has said about it. The sentence “the Fourteenth Amendment protects abortion rights” would be rendered true or false by the same events as it would have before the Supreme Court addressed the subject: for the originalist, by the meaning expressed by the words of the Fourteenth Amendment in the original context of Reconstruction.

Rather than altering our constitutional ontology, reliance interests would be relevant under a better-be-damn-sure approach to precedent epistemically, by raising the burden of proof before the Court could properly overrule. In that case, it would be critical for dissenters to mount some kind of substantive defense of the propriety of constitutional abortion rights. Those who deem reliance interests in Roe and Casey to be relatively high would require a commensurately smaller defense. But they would need something, and almost certainly more than they received in the Dobbs argument itself. To say that we should retain Roe or Casey solely because of stare decisis considerations would be like a criminal defense attorney urging a jury to acquit solely because the beyond-a-reasonable-doubt standard is so high. To be persuasive, the dissents will have to do better than that. If they do not make the attempt, the majority’s confidence that overruling Roe is the right approach should grow.

Another 9-0 Win for Textualism in Morgan v. Sundance
Michael Ramsey

Last week the Supreme Court ruled unanimously in Morgan v. Sundance, Inc. that there is no atextual "policy favoring arbitration" that allows courts to make up additional requirements for waiver of a contractual provision for arbitration.  (SCOTUSBlog analysis from Charlotte Garden here).  From Justice Kagan's opinion reversing the Eighth Circuit:

Outside the arbitration context, a federal court assessing waiver does not generally ask about prejudice. Waiver, we have said, “is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U. S. 725, 733 (1993) (internal quotation marks omitted). To decide whether a waiver has occurred, the court focuses on the actions of the person who held the right; the court seldom considers the effects of those actions on the opposing party. That analysis applies to the waiver of a contractual right, as of any other. As Judge Colloton noted in dissent below, a contractual waiver “normally is effective” without proof of “detrimental reliance.” ... So in demanding that kind of proof before finding the waiver of an arbitration right, the Eighth Circuit applies a rule found nowhere else—consider it a bespoke rule of waiver for arbitration.

The Eighth Circuit’s arbitration-specific rule derives from a decades-old Second Circuit decision, which in turn grounded the rule in the [Federal Arbitration Act's] policy. ... But the FAA’s “policy favoring arbitration” does not authorize federal courts to invent special, arbitration-preferring procedural rules.  ...  And indeed, the text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one we address here. Section 6 of the FAA provides that any application under the statute—including an application to stay litigation or compel  arbitration—“shall be made and heard in the manner provided by law for the making and hearing of motions” (unless the statute says otherwise). A directive to a federal court to treat arbitration applications “in the manner provided by law” for all other motions is simply a command to apply the usual federal procedural rules, including any rules relating to a motion’s timeliness. Or put conversely, it is a bar on using custom-made rules, to tilt the playing field in favor of (or against) arbitration. As explained above, the usual federal rule of waiver does not include a prejudice requirement. So Section 6 instructs that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the FAA.

And in conclusion:

Our sole holding today is that [courts] may not make up a new procedural rule based on the FAA’s “policy favoring arbitration.”

Seems like an easy case -- but it's not if courts don't stick to the text and let themselves "make up" rules.  As Justice Kagan noted, "Nine circuits, including the Eighth, have invoked 'the strong federal policy favoring arbitration' in support of an arbitration-specific waiver rule demanding a showing of prejudice."

The Morgan case reminds me of Cassirer v. Thyssen decided earlier this year, in which the Court unanimously overturned a court of appeals decision that made up a federal policy not found in, and indeed contrary to the text of, the relevant statute.  Cases like Morgan and Cassirer are big wins for textualism over judicial policymaking.  They share another characteristic too: a sympathetic winning plaintiff, with a vaguely center-left political valence.  It's great to see the right-leaning Justices sticking to textualism in these cases.  But textualism can't really claim victory until we see left-leaning Justices sticking to textualism for right-leaning outcomes.

05/30/2022

Originalism in the Cawthorn Litigation
Michael Ramsey

Last week in Cawthorn v. Amalfi, the Fourth Circuit (Judge  Heytens, joined by Judge Wynn) concluded that the 1872 Amnesty Act wasn't prospective (and therefore doesn't shield Representative Cawthorn from potential disqualification):

In 1868—three years after the end of "the late wicked Rebellion"—the Constitution was amended to disqualify from future federal or state office certain public officials "who … shall have engaged in insurrection or rebellion against" the United States "or given aid and comfort to the enemies thereof." Four years later, Congress exercised its constitutional authority to "remove such disabilit[ies]" by enacting legislation lifting the "political disabilities imposed by" Section 3 of the Fourteenth Amendment "from all persons whomsoever" with the exception of certain high-ranking federal officers who had joined the Confederacy.

The issue currently before us is whether that same 1872 legislation also prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct. To ask such a question is nearly to answer it. Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment's eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment.

...

The most fundamental problem with Representative Cawthorn’s proposed interpretation is that the Act’s operative clause refers to those “political disabilities imposed ” in the past tense rather than new disabilities that might arise in the future. The past tense is “backward-looking”; it refers to things that have already happened, not those yet to come. Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). Of course, we must consider the text not just as a modern reader would but also its “plain meaning at the time of enactment.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020). But  Representative Cawthorn has not argued that this elementary rule of conjugation has changed in the last hundred and
fifty years—likely with good reason. Cf. Blair v. City of Chicago, 201 U.S. 400, 465 (1906) (“This declaration is in the past tense, and can have no reference by any fair construction to future engagements.”).

...

...[T]he available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness. See Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 111–21 (2021). Those problems were partly logistical: Using individual “private bills to remove Section Three disabilities” fostered  favoritism,” and the “thousands” of applications threatened to “overwhelm[]” Congress. Id. at 112; accord Cong. Globe, 42d Cong., 2d Sess. 3253 (1872) (Senator Pratt) (“[T]he exclusion of these men from office is a fruitful source of discontent . . . . These disabled people are constant grumblers. They parade their griefs every day.”). But matters of principle were also at stake, because President Grant and others argued that keeping large categories of people out of office was ineffective in excluding noxious ideas if those ideas were held by a majority of their constituents. See Magliocca at 115–16. And even though the debates over amnesty occupy scores of pages in the Congressional Globe,
neither the district court nor Representative Cawthorn has cited any statement by any member of Congress referencing the treatment of future insurrectionists.

Agreed, as noted here (criticizing the district court decision to the contrary).  I like the structure of the court of appeals decision:  close textual analysis (some of which is omitted in the quotes above), which establishes a presumptive textual reading, and then a look at the history and context to confirm.

At Volokh Conspiracy, Samuel Bray notes that this is in part an application of the "mischief rule" -- that is, interpreting a provision in accordance with the "mischief" at which it was directed.  As this case illustrates, I think that rule is an appropriate tool of originalist interpretation if used carefully.  In particular, it can be used to resolve a textual ambiguity or (as here) to confirm a probable textualist  interpretation; it shouldn't be used, though, to go against the text (as it is sometimes).

But:  I also agree with Judge Richardson, concurring in the judgment, that the whole issue is precluded (as to Members of Congress) by Article I, Section 5 of the Constitution:

[U]nder Article I, section 5, clause 1 of the Constitution, the House "shall be the Judge of the Elections, Returns and Qualifications of its own Members." The House of Representatives here is not just a judge, it "is the sole judge of the qualifications of its members."

To reach that conclusion, I work through four premises. I start by explaining that Art. I, § 5, cl. 1 of the Constitution is a jurisdictional bar on a federal court's power to determine the qualifications of a member of Congress. Then I explain how, under Supreme Court precedent, there is no meaningful distinction between judging a member's qualifications and pre-judging a candidate's qualifications. Next, I show why Section 3 of the Fourteenth Amendment is one of the "Qualifications" of membership in the House of Representatives, under the meaning of Art. I, § 5, cl. 1. Those premises together show that courts have no jurisdiction to "judge" a candidate's qualifications under § 3. From there, I conclude by showing why the district court's interpretation of the 1872 Amnesty Act as applied to Representative Cawthorn amounts to a judging of his § 3 qualification. Taken together, these premises prove that the district court had no jurisdiction to proceed on Representative Cawthorn's claim under the 1872 Amnesty Act. While I respect the district court's hesitation to decide core constitutional questions and rely on a statutory ground, that choice was unavailable because the Constitution leaves this question—how the 1872 Amnesty Act applies to Representative Cawthorn's qualifications for office—to the House of Representatives alone….

I would call this a rare case of a "political question" in the form of a determination textually committed to another branch.  Or to put it another way, giving courts the power to decide the qualifications of Members in contested cases is "repugnant to" (in Hamilton's words for an irreconcilable conflict) the House's power to decide them.

RELATED: At New Reform Club, Seth Barrett Tillman presses an alternative reason the whole case should have been dismissed: Section 3 of the Fourteenth Amendment (he says) isn't self-executing per Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869):

Griffin’s Case is good persuasive authority. Prior to 2021 that was widely, if not universally, recognized. To put it another way, if Griffin’s Case was correctly decided, then state and federal executive branch officers (and other applicants in ballot contests) cannot rely on Section 3 of the Fourteenth Amendment to disqualify an alleged insurrectionist candidate from the ballot for a federal position absent federal statutory authorization. Apparently, no such federal statutory authorization (now) exists. Likewise, if an alleged insurrectionist already holds a federal office, then federal executive branch officers cannot remove the person from office (e.g., in quo warranto proceedings) based on Section 3 absent federal statutory authorization to do so.

Furthermore, if Griffin’s Case is good law or correctly states the law, then the Cawthorn plaintiffs lack a cause of action, as do other similarly situated plaintiffs in other Section 3 cases. If the plaintiffs lack any valid or cognizable cause of action, then the federal courts lack jurisdiction to hear the case. In those circumstances, jurisdiction should have been discussed prior to any discussion of Cawthorn’s Amnesty Act defense (and the plaintiffs’ responses to that defense), and the entire case should have been dismissed for lack of jurisdiction.

Judge Richardson doubted that Griffin’s Case is good law due to an apparent conflict with another early case, In re Davis, 7 F. Cas. 63, 90 (C.C.D. Va. 1871), but in the post Professor Tillman explains why he sees no conflict.

05/29/2022

Aaron Coleman on John Phillip Reid
Michael Ramsey

At Law & Liberty, Aaron Coleman (University of the Cumberlands -- History): John Phillip Reid's Constitutional Achievement. From the introduction: 

John Phillip Reid, prolific scholar of early American constitutional and legal history, passed away on April 6, 2022, at 91. Spending his entire career at NYU Law, Reid established himself as one of the most erudite and penetrating minds in the field of American constitutional and legal history.

... His work on the constitutional dimensions of the Revolution challenged both the progressive interpretation, which viewed the conflict through the lens of socio-economic conflict, and the ideological school, which connected the American arguments to the republican intellectual tradition. Both schools, he believed, failed to grasp the essence of the era’s thinking. The American Revolution, he concluded, was concerned predominantly with the nature of the British constitution. By supplying the forgotten constitutional context to the modern historical debate, Reid’s scholarship left an indelible mark on our understanding of the Revolution. His passing offers a chance to remember his often unappreciated work.

Reid first made his case for the constitutional nature of the American Revolution in a series of lengthy law review articles and works comparing the “conditions of the law in Ireland and Massachusetts” and the concepts of representation and liberty at the time of the Revolution. His full-throated correction, however, came in his magnum opus, the four-volume, Constitutional History of the American Revolution (1988-1993). Each volume concentrated on one aspect of English constitutionalism: The Authority of Rights; The Authority to Tax; The Authority to Legislate; and The Authority of Law. In 1995, he produced a surprisingly slim, single-volume abridged edition. The collection remains, and probably will remain, the single most important constitutional analysis of the Revolution. It deserves a far wider readership than it has received and should be considered the equal of and, in some ways, a necessary correction to Bernard Bailyn’s Ideological Origins of the American Revolution.  

Perhaps the most crucial element of Reid’s work was his disentanglement of the constitutional from the ideological. Much of what the “intellectual school” labeled republicanism, he argued, came “straight out of the literature of the common law, from the writings of Sir Edward Coke, Sir Matthew Hale, and even Sir William Blackstone.” This common law mind, with its emphasis on the assumptions, customs, traditions, and values of the British constitution, shaped the Revolutionary debate and centered it on “constitutional anxieties.” Reid’s emphasis on the constitutional dimensions of the debate stood in stark contrast with the ideological school’s construction of a “comprehensive system of thought in which constitutionalism was one contributing element of the contemporary world view.” Essentially, the ideological school made constitutionalism a supplement to the larger ideological argument rather than the primary motivator. This is not to say that Reid dismissed the findings of “intellectual school”—indeed, he often praised their work—but he saw it as his goal to correct, sharpen, and refocus those arguments to bring actual constitutionalism back into the story.   

05/28/2022

The Debate about “the” Original Meaning of the Fifth Amendment’s Due Process Clause
David Weisberg

Lawrence Solum and Max Crema have engaged, on this blog, in an interesting debate with Andrew Hyman regarding the proper interpretation of the phrase “due process of law” in the Fifth Amendment.  The former hold that the original meaning of the phrase “only requires that the federal government secure the appropriate (or ‘due’) writ or precept before depriving an individual of life, liberty, or property”, while Hyman contends that the phrase “basically meant proceedings owed according to both procedural and substantive law, including writs established by law, as modified by later federal statute law and the U.S. Constitution.”  (Emphasis added.)

I want to comment on one aspect of the debate.  Solum and Crema say this about their methodology:    

To answer [the] question [how the phrase “due process of law” was understood in 1791], we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.

In light of the foregoing, I think it is obvious that it cannot “plainly” or in any other way be said that, when the founding generation spoke of “process,” they meant writs.  The very results documented by Solum and Crema establish that the phrase, as used by the founding generation, was ambiguous—sometimes (most frequently) it had a relatively narrow meaning (that is, limited to procedural writs), but other times (less frequently) it had a broader meaning (encompassing both procedural writs and substantive law).  The less frequent meaning, by Solum and Crema’s own reckoning, was not anything like infinitely vanishing in frequency.  Twenty-six percent or even sixteen percent is not close to zero percent.  

Ambiguity was a feature of language in 1791, just as it is today.  If the original meaning of a phrase was ambiguous, one cannot properly determine the original meaning of the phrase by focusing on the most frequent meaning.  (What would Solum and Crema have decided if the frequency of the narrow meaning had been 51%?)  An ambiguous phrase does not have one—that is, “the”—original meaning.  That is exactly what it means for a phrase to be ambiguous.  

In sum, if we can ascertain today, in 2022, that the phrase “due process of law” was ambiguous in 1791, then it would seem very likely that learned, intelligent people would have been fully aware, in 1791, of that same ambiguity.  Indeed, it could well be the case that the framers and ratifiers in 1791 settled on that phrase precisely because they knew it to be ambiguous; they themselves might have believed that, in certain factual settings, one meaning should be applied, while in other factual settings, the other meaning should apply.  I don’t believe any analysis based on corpus linguistics could ever disprove such a hypothesis.    

Michael Smith: The Present Public Meaning Approach to Constitutional Interpretation
Michael Ramsey

Michael L. Smith (Glaser Weil Fink Howard Avchen & Shapiro LLP) has posted The Present Public Meaning Approach to Constitutional Interpretation (Tennessee Law Review, Vol. 89, forthcoming 2023) (58 pages) on SSRN.  Here is the abstract:

Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism ultimately fall flat if critics fail to propose preferable alternative to originalism. After all, it takes a theory to beat a theory.

This Article proposes an alternate theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This straightforward alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer’s recent article, Unoriginal Textualism, argued for the theory’s feasibility. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited.

This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach to constitutional interpretation is a better means of constraining judges, and leads to judicial decisionmaking that is more transparent and predictable. It also better achieves goals of democratic legitimacy by taking into account modern views on indeterminate, value-laden language in the Constitution and its amendments and by accounting for significant expansions in the right to vote since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles originalism faces, and is more likely to lead to desirable results by better accounting for present circumstances.

This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is still preferable to originalism—avoiding numerous shortcomings and critiques against originalist methodology, and preferable in light of many normative considerations that originalists claim to honor. Originalists must therefore take the present public meaning approach seriously when defending their theories of constitutional interpretation.

Often, especially as to technical provisions, I think present public meaning doesn't differ that much from original public meaning, which is why (in my view) original meaning originalism is, or should be, heavily textualist. But sometimes it does, and I'm not sure of the justification for letting our basic law be determined by random changes in language.  More importantly, though, I think in many cases the present public meaning isn't distinct from what one thinks the Constitution ought to mean.  Consider "due process of law": does its modern meaning include "substantive" due process?  That question isn't really separable from whether one thinks it should include "substantive" due process. Thus it is not really an objective test.

05/27/2022

Eric Segall on New Originalism (with my Objections)
Michael Ramsey

At Dorf on Law, Eric Segall: The Concession that STILL Dooms Originalism.  From the core of the argument: 

Under the New Originalist approach, and in the [in]famous construction zone, judges have discretion to bring an almost endless array of post-ratification facts and changed cultural values into consideration when resolving constitutional cases, diluting any meaningful constraining effect of the text’s original meaning. For example, I previously quoted Professor Solum himself for the following proposition shared by most New Originalists: 

[I]n Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender. . . . Bradwell could have been understood as consistent with the [Privileges and Immunities Clause] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

Notice that Solum does not merely refer to changed facts but "changing beliefs about facts." This idea is similar to Professor Barnett's belief, echoed by almost all New Originalists, that judges today can discard expected applications, like women are not protected from discrimination in public employment by the 14th Amendment, if facts (read values) have changed (enough). It is on a similar principle that Professor Barnett once expressed that he "is sympathetic" with Professor Jack Balkin's claim that Roe v. Wade could be justified on an originalist basis even if no one in 1868 thought that abortion was a constitutionally protected right. 

But the constitutional text that gives rise to almost all modern lawsuits was ratified in either the late 18th or middle 19th centuries, when our country was different in most material ways than today relevant to lawsuits that are brought today. What all of that means is that this form of originalism (without super-strong deference) is indistinguishable from living constitutionalism, or for that matter common good constitutionalism. There is simply no constraint on judges from this form of originalism in litigated constitutional cases.

He goes on to argue:

The non-delegation doctrine is all the rage today among many originalists. But even if there was a strong originalist basis for that view (and there isn't), a judge could always say, "well, we now know what caused the New Deal and that changes how judges deal today with the expected non-delegation doctrine.” Similarly, let's say the unitary executive theory has a sound originalist basis. But no one in 1789 could destroy the world by pushing a few buttons. That new fact could make a huge difference in how we view the war-making power and under what circumstances the President can fire people or not in the chain of command or whether the President can use offensive weapons to kill US citizens abroad who we think are are terrorists but no court has so found. The point is there are always changing facts relevant to all litigated constitutional cases that involve text written so long ago. And remember, a judge does not have to find the facts have actually changed, just that beliefs about facts have changed.

Neither Professor Solum nor Barnett has ever responded to this argument, though they are well aware of it. In fact, I made this argument in a room they were both in at the San Diego Originalism Conference in February. 

I can't speak for Professors Solum and Barnett, and I don't really consider myself a New Originalist (not with capital letters, anyway). But I think there's a fundamental difference between the Bradwell example and the separation of powers examples Professor Segall gives.

His examples are ones in which a judge concludes, based on new experiences, that the structure established by the Constitution's original meaning is normatively bad, and so decides to change it.  I'll take the unitary executive point, as I know that area the best.  Assume Justice Scalia's view in Morrison v. Olson is correct as an original matter -- that is, the original meaning was that all of the executive power had to be vested in the President or someone fully controlled by the President.  The modern presidency is of course different from the eighteenth century version on many dimensions.  That may make the framers' design unwise.  But it does not change the original meaning of the Constitution or the way it would apply to modern circumstances, which is that all of the executive power had to be (and today must be) vested in the President or someone fully controlled by the President.  No fact relevant to the application of the original meaning has changed, although facts relevant to the wisdom of the original meaning may have changed.  I think no originalist would allow the application of the original meaning to change in these circumstances.

Contrast Bradwell:  assume the original meaning of the relevant clause was that generally people must be treated equally with respect to certain rights, including practicing law, but differences were tolerated where people were differently situated.  Further assume that the reason the Court upheld the ineligibility of women in Bradwell was the (mistaken) factual claim that women were differently situated with respect to practicing law.  We now know the factual claim was mistaken.  One might well say, then, that the original meaning now applies differently.   That's not because we think the original meaning needs to change in light of new circumstances.  The original meaning hasn't changed: the meaning is still that generally people must be treated equally with respect to certain rights, including practicing law, but differences may be tolerated where people are differently situated.  Rather, it's because we now understand that people originally thought to be differently situated are not differently situated.  The change is not in meaning, but in facts underlying how the meaning is applied.  That's completely different from the unitary executive example, where the meaning itself would have to change to yield a different result.

05/26/2022

Kurt Lash: Roe and the Original Meaning of the Thirteenth Amendment
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted Roe and the Original Meaning of the Thirteenth Amendment (16 pages) on SSRN.  Here is the abstract:

The current debates over Roe v. Wade as a substantive due process right have prompted a number of scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery" and "involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument concede that the right to abortion was not the expected application of the Thirteenth Amendment, but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.

This essay explores the history behind the adoption of the Thirteenth Amendment and conclude the pro-Roe reading of the Thirteenth Amendment is incorrect. The original meaning of the Thirteenth Amendment is defined by the text upon which it was based and defended: The 1787 Northwest Ordinance. The framers of the Amendment intentionally used this text precisely because it was well known and had a narrow historical meaning. As used in the Ordinance, the terms “slavery and involuntary servitude” referred to a specific and legally codified “private economical relation” between a “master” and a “servant.” Under slavery--the most severe form of “involuntary servitude”--both the women and the unborn child were considered property equally subject to dismemberment or destruction. The Thirteenth Amendment applied the prohibitions of the Ordinance throughout the United States and forever abolished the idea that one could hold “property in man.” However, nothing in the Amendment (or the Ordinance) affects laws restricting the termination of a pregnancy—laws that were common throughout antebellum America.

05/25/2022

James Heaney on Originalism and the Dobbs Draft Opinion
Michael Ramsey

At Law & Liberty, James Heaney: Kindling a New Originalist Fire.  From the core of the argument: 

The leaked draft majority opinion, by the “practical originalist” Justice Samuel Alito, would indeed be a significant victory for pro-lifers, should it become official. Yet the draft not only does not depend on originalist textualism; it bears almost no evidence of being influenced by originalism at all!

...

Roe v. Wade and its sequel, Planned Parenthood v. Casey, located a constitutional right to abortion in the “due process” clause of the Fourteenth Amendment (or, alternatively, in the Ninth Amendment). An originalist  Dobbs  decision would begin with a fair but thorough evaluation of the original public meaning of the due process clause, before proceeding to the textual basis for “substantive due process” rights, their application (if any) to abortion, and the meaning and justiciability of the Ninth Amendment. This opinion would consider historical and semantic evidence regarding the Amendments’ objective meaning, according to the understanding of a reasonable person at the time of their adoption; the Amendments’ expected applications, insofar as they revealed the objective principles the Amendments embody; and finally, the application of that objective meaning to the question of abortion, using tools of constitutional interpretation or construction as appropriate. The result of this inquiry would likely foreclose not only a constitutional right to abortion, but, if Justice Thomas’s unflinching originalist case law is any indication, the entire line of substantive due process cases as well.

Fortunately for the entire line of substantive due process cases, Alito’s draft majority does nothing of the sort. Alito accepts without question the existence of substantive due process rights and their grounding in the Fourteenth Amendment. He likewise accepts the entire body of precedents that guide “discovery” of substantive due process rights. The only precedents Alito dares to doubt are Roe and Casey themselves. Those are the cases directly challenged by Mississippi in its arguments to the Court, so the opinion limits itself to those cases. The opinion does favorably cite cases from the textualist “anti-canon,” such as Griswold (albeit indirectly), but the reader will ctrl-F in vain for a single reference to “original public meaning” in Alito’s draft majority.

Having accepted substantive due process rights and the entire body of case law built on them, Justice Alito turns to the question of whether Roe (and, by extension, Casey) were correctly decided. In short, rather than analyzing them on sturdy originalist terrain, Alito chooses to confront Roe and Casey on their home turf. He grants them every advantage, every precedent they ask for, every interpretive standard they rely on—no matter how far afield it may take him from the original public meaning of the Constitution. After construing everything in their favor, Alito then asks whether  Roe or Casey demonstrate a constitutional right to abortion, according to their own putative standards.

So will Justice Thomas have a concurrence taking the originalist approach? (I suspect so).

05/24/2022

Crema and Solum Reply to Hyman
Max Crema and Lawrence Solum

We are grateful for Andrew Hyman’s engagement with our recent article on the original meaning of “Due Process of Law” in the Fifth Amendment.  The key question for originalists is the meaning of “due process of law” in 1791.  To answer that question, we trace the history of the phrase from the fourteenth century through to the founding-era.  We then investigate how “process,” “process of law,” and “due process of law” were used in founding-era documents, employing both traditional methods of historical research and methods associated with corpus linguistic analysis.  We conclude that the original meaning of the Fifth Amendment’s Due Process of Law Clause is much narrower than previously suspected, and only requires that the federal government secure the appropriate (or “due”) writ or precept before depriving an individual of life, liberty, or property.

Although Hyman briefly touches on our founding-era evidence (more on that later), he principally focuses on the meaning of “due process of law” in early English history.  Hyman suggests that “due process of law” was “essentially synonymous” with a much broader and more expansive term, “law of the land,” and therefore concludes our narrow definition of the phrase is mistaken.  We do not agree and offer this response.

As we set out at some length in our article, “law of the land” had a much broader meaning than “due process of law.”  According to Sir Edward Coke, “law of the land” meant the “legem angliae” (the law of England) and encompassed “the Common Law, Statute Law, or Custom of England.”  2 Edward Coke, The Institutes of the Laws of England 46, 51 [hereinafter Institutes].  Coke’s Institutes regularly uses “law of the land” to refer to England’s substantive laws, writing, for example, that a child born during the period of his parents’ engagement will be deemed mulier—born in wedlock—“by the law of holy church . . . albeit by the law of the land he is a bastard.”  1 Institutes 244 (emphasis added).  Coke’s writings are full of similar examples (many of which are documented in our article).  As Justice Powys’ opinion in Regina v. Paty explains: the meaning of “law of the land” is “not confined to the common law, but takes in all the other laws, which are in force in this realm.”

“Due process of law,” by contrast, was defined much more narrowly.  As the late-Justice Scalia once explained, the “historical evidence suggests that the word ‘process’ in [‘due process of law’] referred to specific writs employed in the English courts.”  Our article charts this evidence in detail.  For now, however, it is enough to point to Coke’s own understanding of “due process of law,” which he defined to mean “indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.”  2 Institutes 50. 

Coke believed the “law of the land” meant the “the Common Law, Statute Law, or Custom of England” while “due process of law” meant writs, specifically “indictment or presentment [or] writ original of the Common Law.”  The concepts were related, but distinct.  Indeed, Coke is fairly clear that he understood these phrases to mean different things, explaining: “[N]o man can be taken, arrested, attached, or imprisoned but by due proces[s] of Law, and according to the Law of the Land.”  Id. at 52 (emphasis added); see also Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 429 n.82 (2010) (collecting similar statements by Coke that “seem to imply a distinction between the two concepts”).

Hyman’s post never grapples with this evidence of divergent meanings but instead points to a single passage from Coke that, he claims, “clearly” equates “law of the land” with “due process of law.”  Hyman is in good company; this passage has long been relied upon to equate the two terms.  In our article, however, we join the growing number of scholars to question this view and spend an entire section (which Hyman does not engage) explaining why it is mistaken.  We will not repeat our arguments here, except to note that the very passage Hyman relies on itself defines ‘by due process of law’ to mean: “by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by Writ original of the Common Law.”

Hyman claims that this sentence—which focuses on “indictment,” “presentment,” or “writ original” (all forms of process)––somehow has little to do with writs and is all about courtroom procedure.  According to Hyman, the words “in due manner” indicate that Coke intended to gesture towards something suspiciously like modern procedural due process doctrine.  But that reading is implausible: grammatically the “due manner” clause modifies the preceding “indictment or presentment” clause and not the sentence as a whole.  That makes sense—indictments and presentments were historically the province of grand juries.  At most, Coke is stating that the proper forms must be followed in securing the “due process” issued by the grand jury.  Hyman is correct that Coke is paraphrasing a statute from 1351 (not 1352), but that statute hurts, rather than helps, Hyman’s reading of Coke because the statute is even more clear that the “due manner” language refers to grand jury proceedings (or their equivalent), reading:

[N]one shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law . . . .”

1351, 25 Edw. 3 c. 4.

Hyman’s reading of this single passage from Coke is plausible if the passage is considered in isolation, but it is not the best reading.  And Hyman’s reading rapidly becomes untenable in view of the considerable evidence that Coke understood “due process of law” and “law of the land” to mean different things.  Moreover, Coke’s views—while important—are not dispositive of the ordinary meaning of the Fifth Amendment’s Due Process of Law Clause.  Our article discusses Coke at length because he is the traditional go-to for those who would define “due process of law” expansively, but the real question is how the phrase “due process of law” was understood in 1791. 

To answer that question, we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.  As one popular Founding-era legal handbook (co-published by Benjamin Franklin) explained: “due process of law” meant “Indictment, or Presentment of good and lawful Men of the Place, in due Manner, or by Writ original of Common-Law,” and required that all seizures and commitments be made only upon “lawful authority” as conferred by a “Warrant or Mittimus.”

Hyman’s post discusses only two of our 600+ founding-era sources.  Hyman explains, without elaboration, that he has disregarded the bulk of the historical record because he is only “interested in how the term ‘due process of law’ was used in a context similar to the Due Process Clause.”  But the sources Hyman chooses to discuss—the above quoted legal handbook and a newspaper report of a speech by Alexander Hamilton—almost seem picked at random.  Although we do discuss these sources in our article, more obvious analogues to the Bill of Rights abound.  For example, Hyman might have considered our discussion of early colonial declarations of rights that use the “due process” language (pp. 492–95), the New York Rights Act of 1787 (pp. 497–99, 520–21), or New York’s Ratification Letter, which likely served as the inspiration for the Fifth Amendment’s Due Process of Law Clause (pp. 507–508).  We discuss these sources (and many more) in our article and urge interested readers to download a copy.

Turning to Hyman’s chosen terrain, we do not agree that the Conductor Generalis has little to add.  It was likely the most popular legal hornbook of the founding-era, widely used by both lay people and educated lawyers.  See John A. Conley, Doing It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America, 6 J. Legal Hist. 257, 283 (1985).  The hornbook defines “due process” to mean “indictment,” “presentment,” or “writ original.”  It then goes on to explain:

[S]eeing that no man can be taken, arrested, attached, or imprisoned, but by due process of law, and according to the law of the land, these conclusions hereupon do follow:

1. That the person or persons which commit any have lawful authority.

2. It is necessary that the warrant, or mittimus, be lawful, and that [it] must be in writing under his hand and seal.

The hornbook’s list goes on, but you get the idea.  The right to “due process” meant the right to not be “taken, arrested, attached” etc. without a lawful warrant.

Finally, we come to Hamilton’s much debated comments on “due process” and “law of the land.”  The sole surviving report of Hamilton’s speech is vague, and its internal inconsistencies mean that there is something for everyone.  Compare Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process, 58 Emory L.J. 585, 630–32 (2009) (concluding Hamilton supported substantive due process) with Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85 (1982) (concluding Hamilton supported a weak procedural due process).  For example, Hyman elides that Hamilton discusses “law of the land” and “due process of law” separately and offers different definitions for each, undermining Hyman’s overarching argument.  Like much of the literature, we do not attach significant weight to these comments.

Our article advances a new understanding of the Fifth Amendment’s Due Process Clause, built on an exhaustive review of the available record.  We urge those who doubt our conclusions to read the article and consult the primary sources.