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34 posts from May 2022

05/24/2022

Crema and Solum on Due Process
Andrew Hyman

As Michael Ramsey recently described on this blog, Max Crema and Lawrence Solum have authored a new article arguing that the words “due process of law” in the Fifth Amendment of the U.S. Constitution originally had a much narrower meaning than the words “law of the land” in the Magna Carta. This is an instance where our current laws use ancient phrases, so studying some ancient history is necessary (SNL notwithstanding).

It's important to keep in mind that the word “process” had more than one meaning.  According to the leading law dictionary of the eighteenth century, “First, it is largely taken for all the proceedings in any action, real or personal, civil or criminal, from the beginning to the end; secondly, we call that the process by which a man is called into any temporal court….”  If the broader meaning is used, then the phrase in the Fifth Amendment matches up better with Magna Carta, whereas Crema and Solum support a narrower meaning.

As best I can tell, the framers of the Fifth Amendment would have understood the phrase “due process of law” in accord with binding judicial precedent.  The Queen’s Bench in 1704 had decided the case of Regina v. Paty (92 Eng. Rep. 232, 234), in which Justice Littleton Powys wrote:

By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority. And the law of Parliament is as much a law as any, nay, if there be any superiority this is a superior law.

As far as I know, this opinion by Justice Powys became a binding judicial precedent, and was part of American law after 1776 by virtue of the reception statutes enacted by the former colonies; I am not aware that Crema and Solum disagree on this point.  Moreover, this opinion by Justice Powys seems easily reconcilable with what Edward Coke had written early in the previous century:

But by the Law of the Land. For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8, where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces of the Law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law. Without being brought in to answere but by due Proces of the Common law. No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land. Wherein it is to be observed, that this chapter is but declaratory of the old law of England.

Coke says here that “the words, by the law of the land, are rendred, without due process of law.” He also says here that “due process of law” is the “sense and exposition” of the term “law of the land.” That is why these two concepts have so often been understood as essentially synonymous by the great majority of judges and scholars who have addressed the matter.  As Justice Scalia correctly wrote in a 1991 concurrence: “Coke equated the phrase ‘due process of the law’ in the 1354 statute with the phrase ‘Law of the Land’ in Chapter 29 of Magna Charta….”

In contrast, Crema and Solum point to Coke’s phrase (in the block quote above) “by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.”   We should interpret that phrase, if possible, consistently with what Coke already wrote in the same sentence, so that the words “in due manner” mean that the whole proceeding against a defendant must be done in a manner that is due according to law.  Certainly, it would not be proper to interpret that phrase to mean “by indictment or presentment of good and lawfull men … or by writ original of the Common Law,” without proving that the material hidden by the ellipsis added nothing meaningful, especially since the “due manner” language was explicitly included in a 1352 statute. In my opinion, Coke was clearly equating “law of the land” with “due process of law,” and thereby affirming that the 1354 explanation of Magna Carta was just as protective as was the original Magna Carta in 1215.  

Although Crema and Solum focus on how “process,” “process of law,” and “due process of law” were used in founding-era documents, I am more specifically interested in how the term “due process of law” was used in a context similar to the Due Process Clause in the decades leading up to 1791 (the year before the Bill of Rights was ratified).  This narrow focus is justified because a word having more than one meaning is sometimes used in a sense that is less common, for example in this sentence: "I am not sensible of having done anything wrong.”  That is not an admission of being unwise or imprudent, but merely a statement that a person does not perceive having done anything wrong.  I have carefully looked at the interesting historical evidence presented by Crema and Solum that satisfy the narrow search criteria that I have described, but they do not change my mind.  For example, they quote a manual titled Conductor Generalis published in New York in 1764 which says this:

Or by the law of the land: That is, by due process of law, for so the words are expresly expounded by the statute of 37 E. 3. chap. 8. And these words are specially to be referred to those foregoing, to whom they relate. As none shall be condemned without a lawful trial by his peers, so none shall be taken, imprisoned, or put out of his freehold, without due process of law, that is, by the indictment or presentment of good and lawful men of the place, in due manner, or by writ original of common law.

I do not see that this Conductor Generalis significantly modifies what Lord Coke had said.  

Another major source that Crema and Solum cite is Alexander Hamilton's discussion in the New York legislature about New York’s statutory Due Process Clause, although they acknowledge Hamilton was somewhat unclear.  Hamilton said:

[The state constitution says] no man shall be disfranchised or deprived of any right he enjoys under the constitution, but by the law of the land, or the judgment of his peers. Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke, that great luminary of the law, in his comment upon a similar clause, in Magna Charta, interprets the law of the land to mean presentment and indictment, and process of outlawry, as contradistinguished from trial by jury. But if there were any doubt upon the [state] constitution, the [statutory] bill of rights enacted in this very session removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words "due process" have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.

First, note that Hamilton deferred to Coke.  Second, he says that due process refers to “process and proceedings of the courts” which suggests he was using a broad rather than narrow meaning of “due process.”  Third, he says due process “can never be referred to an act of legislature” which (assuming he was correct) merely meant that the courts had to be involved in dispensing due process, not that the legislature had to be uninvolved.

“Due process of law” in the Fifth Amendment 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.  If I am correct about that, then that clause in the Fifth Amendment is mainly a restriction on the executive and judicial branches.  However, that does not rule out some limitation upon Congress. For example, Congress obviously may not authorize the President to deprive people of liberty without due process of law (further examples are described at page 30 of this article of mine). 

05/23/2022

David Kopel on Whether Originalists Hate America
Michael Ramsey

A while back Andrew Koppelman published an essay titled Why Do (Some) Originalists Hate America?.  At Volokh Conspiracy, David Kopel has this response: Originalists Don't "Hate America".  From the introduction: 

In the Arizona Law Review, Professor Andrew Koppelman asks the provocative question Why Do (Some) Originalists Hate America?, 63 Ariz. L. Rev. 1033 (2021). Originalists who are denounced in the essay include Volokh Conspiracy contributors Randy Barnett (Georgetown), Sam Bray (Notre Dame), Stephen Sachs (Duke), Will Baude (Chicago), me (Denver), and frequent VC guest writer Rob Natelson (presently my colleague at the Independence Institute, formerly at Montana).

Koppelman presents two main arguments. First, some originalists, presumably including all of those he criticizes in the article, are radicals who "hate America."

Second, originalism as a methodology is inherently unstable because it makes the law dependent on the latest discoveries in obscure archives. The only example Koppelman cites for originalism having affected a case outcome is the Natelson-Kopel influence on Chief Justice Roberts' opinion in the Obamacare case, National Federation of Independent Business v. Sebelius. That example is weak, because the Natelson-Kopel argument simply elucidated Chief Justice Marshall's statement in McCulloch v. Maryland: the Necessary and Proper Clause is a grant of "incidental" powers, and not the grant of "a great substantive and independent power." 17 U.S. 316, 411 (1819).

This post first examines Koppelman's assertion that originalists "hate America." Next, it briefly addresses Koppelman's valid criticism of simplistic use of corpus linguistics. Koppelman points to what he considers to be the three prime examples of what he calls "Rules-Reductive Originalism": Randy Barnett on the Commerce Clause, Rob Natelson the Coinage Clause, and Natelson-Kopel on the Necessary and Proper Clause. The post examines each in turn.

Koppelman warns that originalism would create major changes in the law. That is true for the Commerce Clause. However, originalist approaches the Coinage Clause and the N&P Clause just validate the long-standing status quo. The originalist peril is not as dire as Koppelman worries.

I pretty much entirely agree with what Professor Kopel says.  Above all, it seems quite hyperbolic to contend that people who urge reforms in a particular area of American law "hate America."

(Thanks to Andrew Hyman for the pointer.)

 

05/22/2022

Angus McClellan on Originalist Methodology
Michael Ramsey

At Law & Liberty, Angus McClellan (James Madison Program, Princeton University): Getting Closer to the Constitution.  From the introduction:

The future of conservatism in the courts still lies in text-based originalism. But it is true that the current approaches to originalism often rely on an undisciplined hodgepodge of original sources. Indeed, originalism comes in forms that variously give greater or lesser weight to the convention debates, the Federalist, contemporary public perceptions, records from the state ratifying conventions, private letters, Anglo-American common law, historical events, congressional and executive action, early case law, and so on. This is all well and good, but it is unclear which sources deserve the most weight once the text itself becomes vague or ambiguous.

If jurists and scholars crave certainty and legitimacy in the judiciary, then the ultimate goal should be to arrive at a clear method of interpretation that consistently assigns weight to different categories of original sources on a hierarchical scale. Crystallizing text-based originalism into a more coherent and universally applicable method of constitutional interpretation would help to secure the legal principles that define and balance the American forms of liberty, order, justice, and power. We are not alone in this venture. The ghosts of giants still stand among the pillars of our libraries, waiting for us to rediscover their immortal remains. Some scholars just need to get back on their shoulders and start looking around.

With that in mind, originalists should, within the framework of the Blackstonian method of statutory interpretation, rely first on the earliest case law—rather than the latest precedents—when trying to determine the meaning of constitutional text. In other words, if the words of the Constitution are unclear or ambiguous, and if the context of those words fails to produce clear meaning, then the first non-textual step in determining meaning should be a close examination of the first eras of legal interpretation of those words, particularly in the federal judiciary. This is the judicial strain of what pre-Progressive jurists called “contemporaneous construction” or “contemporaneous exposition,” expressed by the legal maxim, contemporanea expositio est fortissima in lege. It is originalism generally—an umbrella term for what some modern jurists and scholars have divided into concrete originalism and abstract originalism. One might call the judicial strain advocated here as simply, “concrete legal originalism.”

While I agree that near-contemporaneous interpretations are reasonable evidence of the original meaning, I don't think they necessarily are the best evidence (nor would I necessarily privilege judicial interpretations over other commentators).  My view is that evidence of meaning from before the drafting and ratification is even better, when available -- because pre-constitutional interpretations of language later used in the Constitution isn't affected by how interpreters want the Constitution to be read after the fact.  Also I think one can distinguish between different types of immediate post-ratification interpretations.  For example, interpretations that run against the interpreters ideological or institutional interests are better than those that don't; and interpretations that rest on a rigorous explanation of the text are better that those that just express a view on what would be the best approach.  For my further thoughts, see the first part of this article: Missouri v. Holland and Historical Textualism.

05/21/2022

Saul Cornell on NYRPA v. Bruen
Michael Ramsey

At Slate, Saul Cornell:  The Horror in New York Shows the Madness of the Supreme Court’s Looming Gun Decision.  From the core of the argument (some rhetoric omitted):

... [T]he arguments and logic that Alito put forth in his leaked draft opinion in Dobbs v. Jackson Women’s Health Organization unambiguously support New York, not the gun rights group challenging New York’s law in [NYRPA v. Bruen]. Alito’s history, text, and tradition approach, if applied in a rigorous and neutral fashion, favors strict gun regulations such as New York’s [restricting the ability to carry guns in public]...

In his Dobbs draft, Alito drilled down into the history of regulation and rights during Reconstruction as the key to determining the constitutionality of abortion. In his earlier decision in McDonald v. Chicago, Alito correctly noted that the new state constitutions written after the Civil War abandoned the founding era’s obsession with militias and replaced it with a more individualistic language focused on self-defense. ... The same new arms-bearing provisions he cited as authoritative also expressly affirmed the right of legislatures to regulate guns in public. The original fear of British redcoats that had animated the founding generation had been supplanted by a new fear: gun violence.

Empowered by this recognition of express constitutional authority to robustly regulate arms in public, dozens of states and cities enacted laws limiting guns in public, including good cause permitting schemes similar to that in New York. ...

05/20/2022

Everybody's Doing It ...
Michael Ramsey

... reviewing Adrian Vermeule's Common Good Constitutionalism.  Here's Randy Barnett in the Claremont Review of Books: Deep-State Constitutionalism.  From the abstract:

In this review, I explain how "Common Law Constitutionalism" taps into a deficiency of the conservative legal movement: namely, its exclusive focus on the law "as it is" at the expense of the underlying abstract normative principles that justify the positive law of our written Constitution. Due to this deficiency, the conservative legal movement gives short shrift to the Declaration of Independence and the Ninth Amendment and the natural rights to which both refer. This deficiency is in need of correction. But any such correction does not justify the jettisoning of originalism as Vermeule proposes. Nor does Vermeule defend his own conception of the common good, preferring instead merely to assert it without considering other serious alternatives.

To make his case against originalism, Vermeule adopts the approach of Ronald Dworkin, which Dworkin formulated before the development of modern originalist theory. This leads Vermeule to seriously mischaracterize modern originalism, which enables him to dismiss a straw man version of it. And yet, in defending himself from the charge that his is just a version of living constitutionalism, Vermeule adopts the fundamental tenets of modern originalism: fixation and constraint. Like living constitutionalists who are "arm chair originalists," however, Vermeule then asserts without showing that the fixed original meaning of the text of the Constitution is so abstract and thin that it permits the direct pursuit of the common good by the government actors unconstrained by the text of the Constitution.

Surprisingly, the government actors Vermeule thinks are most well suited to pursue the common good and implement the natural law are those who work in the federal administrative state. To these bureaucrats he would have the judiciary largely defer--oddly except for environmental regulations where he would allow "public interest" lawsuits to protect the environment. Vermeule provides absolutely no reason to believe that his version of the public good--assuming it is correct--will actually be adopted and served by the administrative state.

Throughout Common Good Constitutionalism, Vermeule fails to confront the strongest versions of the positions he opposes, especially when it comes to originalism. But this book is not really a scholarly project. In my review, I situate it in the current political context to show how Common Law Constitutionalism is largely a work of constitutional polemics, which some social conservatives are finding appealing. But there is very little that is conservative--socially or otherwise--about Adrian Vermeule's commitment to the unfettered regulation of Americans by the deep state.

(Via Volokh Conspiracy.)

And from Richard Reinsch at the Daily Signal: Did the Conservative Legal Movement Err by Supporting Originalism? From the introduction:

Adrian Vermeule leads a growing chorus of critics on the right heralding some form of common goodism as the locus of constitutional interpretation in the judicial system. In “Common Good Constitutionalism,” Vermeule proclaims that originalism fails as a matter of constitutional interpretation because it is a deeply insufficient account of law. This is a critically flawed interpretation because it ignores that our written Constitution does not depend on a range of natural law principles for its interpretation.

The immediate triggers for Vermeule’s departure from originalism are the Supreme Court’s decisions in Obergefell v. Hodges (2016), which declared a constitutional right to same-sex marriage, and Bostock v. Clayton (2020), which extended the categories protected by the 1964 Civil Rights Act to include “gender.” The Justice Neil Gorsuch opinion employed a textualist reading of the Civil Rights Act of 1964 to make it apply to gender, not just sex, regarding discrimination. 

After these two decisions, the response from many conservatives became, If this is what originalism cannot prevent in the case of Obergefell, or what it delivers in the case of Bostock, then we need better thinking.

Vermeule informs, “Originalism is now in a decadent phase in which the elaborate theoretical structure propping it up dominates the landscape of the American legal right.” Indeed, so discredited is originalism that a “truly principled originalist would immolate his own method and transform himself into a classical lawyer, in an act of intellectual self-abnegation and self-overcoming.”

From the conclusion:

Vermeule is at pains to defend an administrative state that’s key development emerged in the same timeframe that he also thinks the classical legal tradition was sloughed off. He does not attempt to reconcile why or how this occurred or what it means for his overall project.

At a minimum, I would have thought that Vermeule would have wanted to show that the administrative state in America is not the outcome of pragmatism, scientism, and the belief in the efficaciousness of arbitrarily defined power to achieve progressive goals.

He does not consider Publius’s framing of tyranny as the joint exercise in one set of hands of legislating, executing, and judging laws. And that is the work of our administrative state, the part of government that Vermeule believes is most in touch with the natural law. The part of government that issues more than 3,000 rules and regulations a year compared to 90-100 actual laws passed by Congress annually. Such a configuration of power is a terrible temptation to its misuse.

05/19/2022

Akhil Amar on the Draft Dobbs Opinion
Michael Ramsey

I've been holding off posting on the leaked draft opinion in the Dobbs case, but this is a very significant essay, not just for what it says but also for who is saying it. In the Wall Street Journal, Akhil Amar: The End of Roe v. Wade -For a constitutional scholar and pro-choice Democrat, there are reasons to endorse the leaked draft opinion overturning the 1973 abortion decision—and to see it as vindication for a range of liberal priorities.  From the core of the argument:

Nor is there anything unusual in the leaked draft’s treatment of precedent. Supreme Court precedents strictly bind lower courts, but they do not bind the Supreme Court itself. Indeed, an essential function of the Court is to revise incorrect or outdated prior rulings. ...

Precedents fall for many reasons. ... Most fundamentally, sometimes the Court comes to believe that an old case egregiously misinterpreted the Constitution, so the old case must go.

In 1954, in Brown v. Board of Education, the justices rightly buried their predecessors’ 1896 ruling in Plessy v. Ferguson, which had proclaimed the dubious doctrine of “separate but equal.” The best argument for this burial was that the Constitution really does promise racial equality, and racial segregation—American apartheid—was not equal. Likewise, the New Deal Court properly repudiated dozens of earlier Gilded Age cases that read property and contract rights far too broadly and in the process invalidated minimum-wage, maximum-hour, worker-safety and consumer-protection laws of various sorts—laws that are now seen, quite rightly, as perfectly proper.

...

Today, the Supreme Court’s 1973 opinion in Roe v. Wade, written by Justice Harry Blackmun, is similarly ripe for reversal. In the eyes of many constitutional experts across the ideological spectrum, it too lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length in his leaked Dobbs draft....

In Roe, the Court did not even quote the constitutional language it purported to interpret in handing down its ruling—the Due Process Clause of the 14th Amendment. That clause holds that the government may not deprive any person of “life, liberty or property, without due process of law”—that is, without fair legal procedures, such as impartial judges and juries, defense attorneys and the like. The Texas abortion law at issue in Roe in fact provided for fair courtroom procedures, which made the decision’s “due process” argument textual gibberish.

Constitutional history also cut hard against Roe. When Americans adopted the 14th Amendment in the 1860s, almost no one thought it barred laws against abortion. Virtually every state back then prohibited abortions. Roe likewise ran counter to state laws still on the books almost everywhere in the 1970s. The opinion clumsily cited various earlier precedents involving “privacy” rights related to contraception and erotic expression, but in a devastating concession, the Roe Court admitted that the presence of a living fetus in abortion scenarios made the matter “inherently different” from all previous privacy cases. ...

And in conclusion:

In short, I am a Democrat who supports abortion rights but opposes Roe. The Court’s ruling in the case was simply not grounded either in what the Constitution says or in the long-standing, widely embraced mores and practices of the country. Perhaps I’m wrong in thinking that, and perhaps the Dobbs draft is wrong too. But there is nothing radical, illegitimate or improperly political in what Justice Alito has written.

I'll add that there shouldn't be anything odd about supporting abortion rights and opposing Roe, although in today's legal climate it sometimes seems that there is.

(Via Ed Whelan at NRO).

05/18/2022

Richard Reinsch on Reviving the Nondelegation Doctrine
Michael Ramsey

At Law & Liberty, Richard Reinsch: Can We Revive the Old Constitution? (reviewing  The Administrative State Before the Supreme Court: Perspectives on the Nondelegation Doctrine (Peter Walliston & John Yoo eds., AEI Press 2022)). From the introduction:

Two common proclamations currently dominate conservative thinking: (1) We are governed by runaway bureaucrats with no accountability to the people, and (2) We are governed by a Congress that refuses to legislate in any regular capacity, even refusing to deliberate in committee and vote on a federal budget on a department-by-department basis. ...

But congressional representatives or senators seem incapable of taking concrete action to revive legislative deliberation, restore the Congressional committee system, discipline the executive bureaucracy, and concentrate on truly national policy concerns, among other items.

We know the scope of the problem, that a deliberating legislative power is no longer substantively exercised by the branch of government vested by the Constitution with this capacity. Instead, much of this lawmaking power takes place in the regulatory or administrative state. Rulemaking also takes place through adjudication, where disputes with private litigants are presided over by administrative judges ensconced in the actual agency whose rules are in dispute.

Legislation, enforcement, and adjudication are exercised by the same set of hands. Publius called this tyranny, and one of the objectives of the 1787 Constitution was to eliminate it.

A new volume from the American Enterprise Institute titled The Administrative State Before the Supreme Court, featuring contributions from a dozen, mostly legal academics, investigates the prospects of reviving the nondelegation doctrine (NDD), which would prevent or at least place limits on Congress transferring its legislative powers to the administrative state. The hopeful consequence is that it would restore Congress to its representative, deliberative power.

And from later on:

And that brings us to the present moment and Justice Gorsuch’s question for reigniting the NDD: What is the test? Justices Roberts, Gorsuch, and Thomas filed a dissenting opinion in Gundy. Justice Alito filed a concurring opinion, but noted, “If a majority of justices were willing to reconsider the approach we have taken for the last 84 years [that is, since the 1935 and the decisions in Panama Refining and A.L.A. Schechter Poultry], I would support that effort.” Gorsuch’s dissent, though, looms largest and is the inspiration for AEI’s scholarly effort.

...

Most of the contributions in the volume are attempts to answer Gorsuch’s question: What is the test? Some offer attempts to provide great robustness to the standard of an intelligible principle that could guide executive agencies in their work and that courts could use to measure if a tailored and direct delegation occurred. ...

One of the essays is by Mike Rappaport: A Two Tiered and Categorical Approach to the Nondelegation Doctrine.

05/17/2022

Senator Rand Paul on the President's Power to Terminate Treaties
Michael Ramsey

At The American Conservative, Senator Rand Paul: The President Can Terminate Treaties Alone.  From the introduction: 

When faced with questions relating to America’s role in the world, we would be wise to heed the advice of the Founders. George Washington urged distance from the “frequent controversies” of Europe. Thomas Jefferson pursued a course of “peace, commerce, and honest friendship with all nations, entangling alliances with none.”

Recently, the Senate Foreign Relations Committee favorably reported a resolution that would reject those words of wisdom. Offered by Senator Tim Kaine (D-Virginia), the resolution would require the concurrence of two-thirds of the Senate or an Act of Congress to agree to any attempt to withdraw the United States from the North Atlantic Treaty Organization (NATO) alliance.

Such a resolution would contravene historical precedence and is likely unconstitutional.

While the Constitution provides a role for both the president and the Senate when entering a treaty, it is silent regarding how to exit a treaty. But that silence says more than some would acknowledge. In what may be considered an example of the common sense of the Constitution, our system requires deliberation before entering alliances while allowing for quick withdrawal should international agreements later prove ruinous to the nation.  

Such an occasion occurred very early in our history as an independent nation. In 1793, President Washington and his cabinet endorsed the view that the president’s executive power included the ability to unilaterally terminate our treaty with France. Withdrawal from our treaty obligations permitted the United States to maintain neutrality in a war between France and Great Britain at a time when our republic could ill afford involvement in foreign military adventures.

I agree -- and not just because he cites me.  (He does, though: "Similarly, as legal scholars Saikrishna Prakash and Michael Ramsey argue, the president’s executive power includes a general power over foreign affairs, and where the Constitution does not allocate specific foreign affairs powers to Congress or the Senate, those powers reside with the president. In other words, treaty termination is an exercise of the executive power of the president over foreign affairs.")

I think it's actually a bit more complicated.  As Professor Prakash and I wrote in the linked article, the President has power to withdraw from a treaty according to its terms as part of the President's executive power in foreign affairs. That doesn't necessarily mean Congress can't limit that power, as in the resolution Senator Paul mentions.  That might depend on whether the President's withdrawal power is exclusive, which it might not be.  But, as an initial matter, the question is whether Congress has an enumerated power to limit the President's withdrawal power.  I think Congress has no such power, at least as applied to NATO.  In particular, while I think Congress has power to implement treaties through its necessary and proper power (see here and here), I don't think limiting the President's withdrawal power is necessary and proper to implementing the treaty power (at least not if the President is withdrawing pursuant to the treaty's term).

So in the end I think Senator Paul is right. (And thanks for the cite.)

05/16/2022

Is Griswold in Accord with the Original Meaning?
Mike Rappaport

With the leak of Justice Alito's draft opinion overturning Roe v. Wade, many people have wondered whether the same reasoning would overturn Griswold v. Connecticut, which protected the right to purchase contraceptives.  While I reject the justifications given in Griswold and Roe, I do believe that Griswold's result might be justified by the 14th Amendment's original meaning under the prevalent rights view of the Privileges or Immunities Clause.   I discuss this theory in two prior Originalism Blog posts: here and here

Here is an excerpt from the first post: 

These days I am inclined towards the following view of the Privileges or Immunities Clause of the 14th Amendment (which several other scholars hold in various forms).  Under this view – which might be termed the prevalent rights view – “the privileges or immunities of citizens of the United States” – refers to the rights that are prevalent throughout the United States at a particular time.  Thus, to determine what those rights are, one must look at what rights the states (and perhaps the federal government) protect.  It may be that those rights should have been protected over a period of time, not just for a particular instant.  

Under this view, there appears to be a strong argument that the right of married couples to use contraceptives was a prevalent right in 1965 – that is, a right enjoyed throughout the United States.  According to Justice Harlan in Poe v. Ullman, “Although the Federal Government and many States have at one time or other had on their books statutes forbidding or regulating the distribution of contraceptives, none, so far as I can find, has made the use of contraceptives a crime.”   

If Justice Harlan is right, then this would support a right to use contraceptives.  Exactly the parameters of that right – whether it extended to unmarried couples, to the distribution of contraceptives, and other aspects – would depend on the number of states that treated these aspects as rights and the necessary number needed to establish it as a prevalent right. 

05/15/2022

Mark Pulliam Reviews Adrian Vermeule's Common Good Constitutionalism
Michael Ramsey

At the Acton Institute Blog, Mark Pulliam: The Founders’ Constitution and its discontents (reviewing [unfavorably] Adrian Vermeule's Common Good Constitutionalism).  From the core of the argument:

Vermeule’s jargon-laden critique, incorrectly perceived as coming from “the right,” has attracted attention for its man-bites-dog novelty. Vermeule aims to discredit originalism altogether and replace it with his bespoke legal order. The moral framework of Vermeule’s integralism (summarized in a 2020 essay he wrote for The Atlantic, entitled “Beyond Originalism”) is hostile to the libertarian bent of the Supreme Court’s current jurisprudence on free speech, abortion, sexual liberties, and related matters.

Despite charges that Vermeule advocates “a kind of reactionary substantive due process,” he is not conservative in any meaningful sense. He represents an odd hybrid of conventional progressivism (support of federal power, administrative agencies, economic regulation, labor unions, and environmental protection) and traditional morality typically associated with social conservatives (opposition to abortion, LGBTQ rights, same-sex marriage, pornography, etc.). Coincidentally, his “constitutional theory” mirrors those views. As Robert Bork wrote in 1982, “the judge who looks outside the Constitution always looks inside himself and nowhere else.” The same is true for constitutional theorists.

Claiming to revive what he calls the “classical legal tradition,” Vermeule exhibits considerable erudition regarding Dworkinian moral philosophy, Roman law, Thomistic political thought, natural law, and the abstruse literature of constitutional “theory.” Judged in terms of ambition and ingenuity, Vermeule earns high marks. Alas, he fails to persuade that these concepts have any relevance to the Constitution as written. Brimming with Latin phrases, and punctuated with jarring citations to figures wholly unrelated to the American Founding (i.e., Giovanni Botero, Carl Schmitt, Johannes Messner, St. John Henry Newman), his self-referential book not only disregards the Founders’ Constitution but stands our constitutional democracy on its head. In a mere 184 pages of text, without a single reference to James Madison, and nary a mention of the Federalist Papers, Vermeule purports to erase and rewrite the Founding. This is pure hubris.

And in conclusion:

Judges are tethered by text, precedent, and well-established norms of interpretation. Academic scholarship can and does influence what passes as the “mainstream” in constitutional jurisprudence—the “Overton Window,” as it is sometimes called in other contexts. “Originalism,” although far from perfect (and never self-executing), limits the exercise of judicial discretion to some extent. Originalist judges have to offer a plausible textual basis for their decisions. Vermeule’s open-ended theory, in contrast, would relieve judges of any such constraint, empowering leftist jurists and unelected bureaucrats to dress their personal predilections up as the “common good”—a wholly subjective inquiry.

Stripped of its “historicist supineness, tendentious scholarship, and political utopianism,” Vermeule’s “radiant vision” of unconstrained government power is a misguided prescription for tyranny. The Founders would be appalled.

See also, as previously noted, this review by my colleague Steven D. Smith and this long critical discussion by Brian Tamanaha.