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24 posts from June 2022

06/13/2022

Samuel Weaver: Restoring Section Five of Kentucky's Constitution
Michael Ramsey

Samuel Weaver (University of Kentucky J. David Rosenberg College of Law, JD '22) has posted Protecting Unbelief: Restoring Section Five of Kentucky's Constitution (Kentucky Law Journal, Vol. 110, No. 1, 2021) (30 pages) on SSRN.  Here is the abstract:

The Kentucky Supreme Court’s 2012 decision in Gingerich v. Commonwealth established that Section Five of Kentucky’s Constitution is coextensive with the First Amendment, protecting neither more nor less. But is this correct?

The text of Section Five, Kentucky’s unique story, the longitudinal history of Section Five’s lifespan over four constitutions, and the doctrines of federalism all point the other direction. Many of Kentucky’s earliest settlers arrived fleeing religious persecution in the East, and they followed Pennsylvania’s lead in firmly protecting liberty of conscience regardless of religious derivation. All three subsequent constitutions preserved a slightly strengthened version of the preceding charter’s protections, even after a strong effort to dilute them in the 1890 Convention. Yet the Gingerich Court neglected this history and instead read Section Five in pari materia with the First Amendment, even though the former predated the latter. In doing so, the Court essentially ratified the rejected proposal from the 1890 Convention and succumbed to the common temptation to further federalize our liberties. In fact, Kentucky’s Constitution is far broader than its federal counterpart and should be interpreted that way. Doing so will not only realize the dreams of Kentucky’s founders, but will relieve pressure on a U.S. Constitution not necessarily designed to safeguard every liberty the states already protect.

From last year but making an important point with broad implications: the "lockstep" approach linking the meaning of state constitutional provisions to whatever the U.S. Supreme Court says about parallel provisions in the U.S. Constitution is often in serious tension with originalism (even if the U.S. Supreme Court opinion is originalist).  State Supreme Courts really should figure these things out for themselves.

Also the "lockstep" conclusion discussed in the Note seems particularly doubtful because, as the Note describes, the Kentucky religion clauses don't use the same text as the U.S. Constitution's religion clauses (or anything close).

06/12/2022

John McGinnis on Gerard Magliocca on Bushrod Washington
Michael Ramsey

At Law & Liberty, John McGinnis: The Workhorse of the Early Court.  From the introduction: 

... In Washington’s Heir: The Life of Bushrod Washington, Professor Gerard Magliocca adds importantly to our understanding of the early Court by making a compelling and well-researched case that Bushrod Washington was the soundest of the early justices. In this quality, of course, he resembled his Uncle George. Many of the Framers were more brilliant than he, but none had surer judgment. As Thomas Jefferson recognized, the first President never acted “until every circumstance, every consideration was maturely weighed.” His nephew, as described by Story, had the same characteristics: his “mind was solid rather than brilliant; sagacious and searching rather than quick or eager; slow but not torpid, steady, but not unyielding.”

Of course, the results of this soundness were not comparable to his Uncle, but that is a standard no one in American history can match. As Akhil Reed Amar has brilliantly argued in The Words that Made Us: Constitutional Conversations, 1760-1840, George was the person most responsible not only for winning the war that made America a nation but also for creating the Constitution that founded it. Nevertheless, from the evidence of this book, Bushrod was the most faithful conservator of that foundation among the early justices. He was devoted to understanding the text as enacted, and he resisted, as some of his more brilliant colleagues did not, the temptation to use the Constitution to create the optimal social policy according to his own lights.

And in conclusion:

Magliocca has himself provided superb academic service in bringing to life a figure who is largely forgotten but for his famous surname and showing his contemporary relevance to some of our own important legal debates.

06/11/2022

James Cleith Phillips: Which Original Public?
Michael Ramsey

James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) has posted Which Original Public? (Chapman Law Review, Vol. 25, No. 2, 2022) (16 pages) on SSRN.  Here is the abstract:

Original public meaning originalism seeks to know what the Constitution would have meant to an ordinary person at the time a specific provision was enacted. So originalist scholars tend to look to see what the Constitution’s words would have meant to an ordinary, average, or competent user of American English at the time a specific constitutional provision was adopted. In District of Columbia v. Heller, however, Justice Scalia’s majority opinion took a more specific view of exactly who qualified as the ordinary person of interest. At one point Heller declares that the “Constitution was written to be understood by the voters.” Yet in the very next sentence, Heller notes that “meanings that would not have been known to ordinary citizens in the founding generation” are excluded. However, these are not the same populations—or, as linguists would say, speech communities —in two ways. First, many citizens could not vote, with voting limited in some states based on requirements such as property ownership, and with few women, able to vote. Second, some voters were not “ordinary,” either generally or in their language use. Most, if not all, of the Founders would not fit this description.

This raises an important methodological question for original public meaning originalism. Performing original public meaning originalism requires looking at how the general public used and understood language. But which portion of the public is the correct one for determining the Constitution’s meaning? Heller proposes two possibilities: voters and “ordinary” citizens. If we go with the latter group, how would we define “ordinariness?” Yet there are other possibilities besides these two populations. What about all citizens, regardless of their “ordinariness?” Alternatively, we could look to the Constitution itself. Its preamble declares that “We the People” ordained and established it. Who would have been understood to be “We the People” in 1789, and are they the proper public for originalism’s inquiry? One could imagine other publics, such as everyone permanently in the United States, regardless of their ability to vote or citizenship status. Originalism has been theoretically fuzzy as to who qualifies as the original public from which meaning must be sought. This essay seeks explore the possibilities in hopes of further theoretical refinement to enable more focused originalist methodology.

06/10/2022

Andrea Roth: The Lost Right to Jury Trial in 'All' Criminal Prosecutions
Michael Ramsey

Andrea L. Roth (University of California, Berkeley - School of Law) has posted The Lost Right to Jury Trial in 'All' Criminal Prosecutions (Duke Law Journal, Vol. 72, 2022) (46 pages) on SSRN.  Here is the abstract:

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace. While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable. Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions. Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court. The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.

06/09/2022

Textualism Wins 24-2 this Week
Michael Ramsey

The Supreme Court decided three cases last Monday with textualism prevailing by a combined vote of 24-2. 

In the constitutional case, Siegel v. Fitzgerald, Justice Sotomayor wrote for a unanimous Court that in Article I, Section 8's bankruptcy clause, "uniform" means "uniform" -- not uniform as to some things or uniform unless there's a reason not to be uniform.  (Thus a law exempting bankruptcy proceedings in some states from fees charged for bankruptcy proceedings in other states is unconstitutional.)

In an 8-0 statutory case (Justice Barrett not participating), Justice Thomas concluded for the Court in Southwest Airlines Co. v. Saxon that people who load baggage onto airplanes are part of  a “class of workers engaged in foreign or interstate commerce” and therefore can avoid contractual arbitration provisions pursuant to federal law.  It's a thoroughly original meaning/textualist opinion, relying heavily on dictionaries from near the time of enactment of the relevant statute (the Federal Arbitration Act, passed in 1925), plus Scalia and Garner's Reading Law (on the meaningful-variation canon) and lots of ejusdem generis.  But no legislative history! 

The Court also brushed aside a "statutory purpose" argument in two short paragraphs:

Southwest falls back on statutory purpose. It observes that §2 of the FAA broadly requires courts to enforce arbitration agreements in any “contract evidencing a transaction involving commerce,” while §1 provides only a narrower exemption. This structure, in its view, demonstrates the FAA’s “proarbitration purposes” and counsels in favor of an interpretation that errs on the side of fewer §1 exemptions. 

To be sure, we have relied on statutory purpose to inform our interpretation of the FAA when that “purpose is readily
apparent from the FAA’s text.” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 344 (2011). But we are not “free to
pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal.” New Prime, 586 U. S., at
___ (slip op., at 14). Here, §1’s plain text suffices to show that airplane cargo loaders are exempt from the FAA’s scope, and we have no warrant to elevate vague invocations of statutory purpose over the words Congress chose.

Finally, Justice Thomas had another textualist opinion for the Court in Gallardo v. Marstiller, involving §1396k(a)(1)(A) of the federal Medicaid Act.  In the Court's view: "The plain text of §1396k(a)(1)(A) decides this case" and "Gallardo nevertheless argues that §1396k(a)(1)(A) has a different meaning, largely by discounting the text of §1396k(a)(1)(A) and then relying on other differently worded provisions or on policy arguments, none of which we find convincing."  Justices Sotomayor and Breyer dissented, but Justice Kagan joined the conservative Justices ruling against a sympathetic plaintiff (a disabled child who had been hit by a truck).

Taken with some other cases noted earlier, the term is shaping up as a winning one for textualism (that being overshadowed, of course, by a few big constitutional cases).

(Aside: the less said about Egbert v. Boule, decided yesterday, the better.)

06/08/2022

Legal Theory Lexicon on "New Originalism"
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon has this updated entry: The New Originalism.  From the introduction:

... The old originalism is associated with the idea that the constitution should be interpreted to conform to the original intentions of the framers—the group that drafted each provision. For the bulk of the constitutional text, drafting occurred in the Philadelphia Convention, but each of the amendments has its own drafting history. But in the 1980s and 1990s originalism began to change in significant ways, and in the late 1990s and early 2000s, scholars began to refer to “the New Originalism.”

This entry in the Legal Theory Lexicon focuses on what is called "New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, "New Originalism" refers to a cluster of originalist theories that reject a set of ideas from older originalist theory, including (1) original intent originalism (in the form that focuses on the application preferences of the Framers) and (2) the idea that the application beliefs of the Framers are binding. 

Many New Originalist theories also endorse the following two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. But some theorists who are called "New Originalists" endorse other theories of original meaning, such as "original methods originalism" and reject the idea the there the constitutional text is substantially underdeterminate.

And from later on:

The New Originalism has given to a new set of disputes, both within originalism and between originalists and nonoriginalists.  From the conservative side some theorists who might be called "new originalists," have focused on restraint and constraint. John McGinnis and Michael Rappaport have argued that constitutional construction is unnecessary. Their argument reflects their distinctive version of originalism, “Original Methods Originalism.” They argue that by using the original methods of constitutional interpretation, judges can eliminate or almost eliminate ambiguity and vagueness; in the most recent iteration of their theory, they claim that the constitution is written "the language of the law" and that legal concepts are more precise and determinate than are public meanings.

A different approach to the problem of constraint has been developed by Gary Lawson and Michael Paulsen. They each argue that the problem of vagueness can be solved by a principle of judicial restraint. When the text is vague or ambiguous, judges should defer to the decisions made by elected officials. So even if there is a “construction zone,” there is no need for judicial discretion or morally informed decision making.

Finally, Randy Barnett and Evan Bernick have argued that cases in the construction zone should be resolved by implementing rules that conform to the original purpose or function of the relevant constitutional provision(s).  Their approach requires judges to act in good faith, discovering original purposes and not acting on their own beliefs about what the purpose of a given constitutional provision ought to be.

Progressive criticism of the New Originalism has focused on a different set of issues. Some progressive critics have argued against the notion that the public meaning of the constitutional text can do the work of resolving constitutional controversies. One version of this criticism emphasizes historical context. Because the original understanding of the text was embedded in particular historical circumstances, that understanding cannot be transported to modern circumstances.

Another line of progressive criticism suggests that the New Originalism no longer provides sufficient constraint and restraint to serve as a real rival for Living Constitutionalism. Thomas Colby has made a version of this argument, and a similar argument has been advanced by Peter Smith. Together, Colby and Smith have also argued that new versions of originalism are so varied in content that it no longer makes sense to think of originalism as a coherent constitutional theory.

06/07/2022

The Insular Cases Initially Did Not Treat Incorporated Territories Differently from Unincorporated Territories With Respect to Birthright U.S. Citizenship
Andrew Hyman

The Insular Cases decided that federal territories can be divided up into incorporated ones and unincorporated ones, with more federal constitutional rights applicable in the former than the latter.  That framework has come in for a lot of criticism, both because of the racially-tinged language that was initially used to justify it, and also because of the thin support for it in the constitutional text or in pre-ratification history.  There is currently ongoing litigation to overrule the Insular Cases.

But there is an important part of the Insular Cases that has almost nothing to do with territorial incorporation and nothing to do with racism.  Downes v. Bidwell (1901) was one of the Insular Cases, and five justices in that case (Brown, Fuller, Harlan, Brewer, and Peckham) quoted the Citizenship Clause of the Fourteenth Amendment while saying that that clause did not apply differently in unincorporated versus incorporated territories.  Whatever else they disagreed about, those five judges agreed on that basic principle that territories should be treated equally under the Citizenship Clause.  

In my view, Justice Henry Brown correctly interpreted the original meaning of the Citizenship Clause in Downes, as being completely inapplicable to birth in any federal territories.  His opinion was not based on overt racism, and it applied equally to both incorporated and unincorporated territories.  There was also a concurring opinion in Downes by Justice White (joined by Shiras and McKenna), and the Court later adopted it as a controlling opinion, but White’s opinion never mentioned the Fourteenth Amendment much less the Citizenship Clause.  

The current litigation about birthright constitutional citizenship in American Samoa ought to be resolved on originalist grounds rather than on the basis of wanting to get rid of the Insular Cases, which have not even been consistent on this point.  As Justice Brown’s opinion shows, the current treatment of citizenship in American Samoa can be justified on originalist grounds without treating unincorporated territories worse than incorporated territories.

The Citizenship Clause says, “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.” Instead of talking about history, or context, let’s briefly consider the most important thing of all which is what the clause says and doesn’t say.

First, the Citizenship Clause could have easily been extended to territories if the clause had been written like this: “All persons born or naturalized in any place subject to the jurisdiction of the United States are citizens of the United States….”  This is why Justice Brown said in Downes that the Citizenship Clause “is not extended” to territories (D.C. is an exception which I won’t address here).

Second, the text of the Citizenship Clause does not mention territories, even though that would have been easy.  As Congressman James Ashley pointed out repeatedly in 1867, it would have been very simple to write: “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 or territory wherein they reside” (emphasis added).  See 40th Congress 2nd Session Cong. Globe 117 (December 10, 1867).

Third, the Citizenship Clause says that the persons entitled to birthright U.S. citizenship “are citizens of … the state wherein they reside” which suggests residence at birth within a state.  This suggestion could have been easily eliminated by including a single extra word: “are citizens of … the state wherein they might reside.”  As the Tenth Circuit recently explained, “Another textual consideration suggesting the Citizenship Clause’s exclusive application to state-born residents is its effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’”

Fourth, Judge Lucero in that Tenth Circuit case wrote that the Citizenship Clause might have been phrased differently if it really was meant to be inapplicable in the territories: “All persons born or naturalized in the several states, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  The problem with that phrasing is that being subject to the jurisdiction of the several states would mean being subject to the jurisdiction of all of them, which is basically impossible, and that would explain why the clause was not phrased that way.  

The last of these four textual features does not seem persuasive, for the reasons explained.  The first three may not be airtight, but are pretty close to being airtight in my opinion.  Prof. Michael Ramsey has not commented on the first one, as far as I know.  As to the second, he has suggested that territorial citizenship was not a high priority because a territory was not a sovereign entity, but territorial citizenship was a common status in the decades leading up to the Civil War (e.g. see this discussion by Joseph Story).  As to the third, Mike has read the Citizenship Clause as containing an implicit “if any” so it reads like this: “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 if any wherein they reside.”  Sometimes it is okay to judicially correct an error in a statute (e.g. by inserting “if any”), but only if “failing to do so would result in a disposition that no reasonable person could approve” (per Justice Scalia).  The words “if any” could have been reasonably omitted to protect indigenous cultures from the imposition of federal oversight and scrutiny, while allowing a greater degree of self-government.  With respect to cultures that are not indigenous, the words “if any” could have been reasonably omitted to make territorial status less appealing, so that statehood would be sought and achieved sooner.

Finally, a word about Justice Brown and his reputation.  Readers may recall that he authored the atrocious majority opinion in Plessy v. Ferguson.  But in Downes he was right, and no one should hesitate about saying so merely because of Plessy. After all, even as to a horrible case like Dred Scott, the prevalent attitude of leaders in the 39th Congress was to condemn what was awful while acknowledging what was valid.  For example, the majority wrote this in Dred Scott: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.”  This line was favorably mentioned several times by Republicans in Congress during 1866 alone, including by Senator Charles Sumner (R-MA), Congressman William Newell (R-NJ), Senator John Henderson (R-MO), Senator Richard Yates (R-IL), and Congressman John Bingham (R- OH).  We should follow their virtuous example, by being careful not to condemn Justice Brown’s opinion in the Insular Cases just because we rightly condemn another opinion of his.  That’s especially true because his opinion in Downes coincided with that of a lot of reputable non-judges of his day, including Harvard Law School Dean Christopher C. Langdell, who wrote in an 1899 law review article about the framers of the Citizenship Clause: “if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'"

FURTHER THOUGHTS:  I’d like to elaborate a little bit on point four in this blog post, which discussed why the words “the several states” were not included in the Citizenship Clause.  In my view, that issue is a wash.  Looking solely at that issue by itself, the word choice could hypothetically have been because (as Judge Lucero argued) the framers understood “the United States” to include all federal territories whereas “the several states” did not.  But that word choice could just as easily have been because the framers wanted to make sure people born while residing in the District of Columbia would be entitled to constitutional birthright U.S. citizenship even though people born in the federal territories would not; Justice Henry Brown plausibly argued in Downes that D.C. is part of the narrow meaning of the United States that excludes federal territories, even if D.C. is not part of the narrower meaning of “the several states.”  Justice Brown’s argument was plausible, and so is the similar argument that the framers’ word choice may have been because they wanted to make sure birthright U.S. citizenship would apply in federal enclaves (which are not subject to the jurisdiction of the several states and where federal authority is the same as it is in D.C.).

06/06/2022

Call for Papers: Originalism Works-in-Progress Conference in San Diego in February 2023
Michael Ramsey

From the University of San Diego Law School Center for the Study of Constitutional Originalism:

On February 10-11, 2023, the Center for the Study of Constitutional Originalism at the University of San Diego School of Law will hold the Fourteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  (Please note that this date is one week earlier than we normally hold the conference.)  We are planning for the conference to be held in person in San Diego.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.

This past February the Center held the Thirteenth Annual Originalism Works-in-Progress Conference in San Diego.  For information on the Thirteenth Conference see here.  For a videotape of the proceedings, see our Youtube Channel.  For information and videotapes of the other twelve conferences, see here or here.   

We invite submissions of works in progress for the Fourteenth Conference.  A work in progress is a draft paper, in article or book chapter form, that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of at least a one to three page abstract (or an initial draft, if available).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Submissions can be sent to us now, if possible, but in any event by the end of August 2022.  We will ask that the selected papers be circulated to conference participants in late January 2023.  The Center will cover the main travel expenses, lodging, and meals for paper authors and commentators.  The Call for Papers page is here.

In addition to paper authors and commentators, we would like to invite all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  The Center would be happy to pay for the principal meals for those attending the entire conference but not giving a paper or serving as a commentator.

We hope you will be able to join us in San Diego. 

06/05/2022

Gerald Dickinson: Reviving Liberal Constitutionalism with Originalism in Emergency Powers Doctrine
Michael Ramsey

Gerald S. Dickinson (University of Pittsburgh - School of Law) has posted Reviving Liberal Constitutionalism with Originalism in Emergency Powers Doctrine (Journal of National Security Law and Policy, Vol. 12, p. 203, 2022) (31 pages) on SSRN.  Here is the abstract:

Recent scholarship suggests the executive power is, at its core, merely the power to “carry out projects defined by a prior exercise of the legislative power” and to implement “substantive legal requirements and authorities that were created somewhere else.” Few, if any, scholars, however, have drawn a link between the original understanding of the Executive Power Clause and its relationship to emergency powers doctrine under the theory of liberal constitutionalism. This Essay addresses this gap in the scholarship, and offers musings about the doctrinal and political implications of an originalist reading of the Executive Power Clause in relation to crisis government and emergency powers doctrine. If, as scholar Julian Davis Mortenson argues, Article II is to be read as merely the power to execute the laws and nothing more, then we must question whether our longstanding expansive view of emergency powers, as derived from Article II, is also wrong. If so, what are the political and doctrinal implications for a narrowed, originalist understanding of Article II in times of emergency?

This Essay proceeds in three Parts. Part I sets forth the traditional theories of emergency powers. From the absolutist to the relativist to the liberal, these competing theories have established the basic frameworks that attempt to resolve tensions between law and necessity during times of crisis.15 While the liberal theory dominated discourse and action in the early Republic, the relativist view has become the dominant view of emergency powers. Part II will seek to revive liberal constitutionalism in emergency powers doctrine by focusing on recent scholarship arguing that the Law Execution theory of executive power meant the power “was conceptually an empty vessel until there were laws or instructions that needed executing” by the legislature. Like the relativist theory of emergency powers displacing liberal constitutionalism, the Royal Residuum Theory likewise has long dispatched the Law Execution theory in executive powers interpretation. Yet, a revised originalist interpretation of the Law Execution theory is based in seventeenth and eighteenth-century originalism where the “ordinary meaning of ‘executive power’ referred unambiguously to a single, discrete, and potent authority” to simply execute the laws created by the legislature. This Essay seeks to supplement an original understanding of the Article II Executive Powers Clause with liberal constitutionalism’s theory that is based on a Madisonian-centric conception of government. Part III offers musings on the political and doctrinal implications of a resuscitated vision of liberal constitutionalism and emergency powers under the Law Execution Theory of executive powers.

I don't accept Professor Mortenson's view of the original meaning of executive power (see here) but I also don't think the original meaning of executive power includes an emergency power (that is, a power to do things in "emergencies" [however defined] that cannot be done in ordinary times).  I think the founding generation would have thought that quite a dangerous power, and I don't see any evidence that it was conveyed by the Constitution.

06/04/2022

Mila Sohoni: Equity and the Sovereign [Updated]
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted Equity and the Sovereign (Notre Dame Law Review, forthcoming) (39 pages) on SSRN.  Here is the abstract:

Equity traces its genesis to kingly power. But the new American constitutional order shattered the crown and left equity unanchored. Who or what, if anything, inherited the role of the sovereign in federal equity? Is the sovereign the executive branch—or is it Congress? Is it “the United States” or “the people of the United States”? However we conceive of the sovereign, is the sovereign entitled to special deference in a federal court of equity—or to the reverse?

Federal courts have not arrived at consistent answers to these puzzles. They have vacillated on who the sovereign is. And they have vacillated on whether the sovereign is entitled to equal, better, or worse treatment from equity than other litigants receive. If equity is, like spacetime, our law’s background field—a “gloss written round our code,” in Maitland’s description—then sovereign power is a star so massive that it warps that field, shrinking parts of it and expanding others.

This Essay, a contribution to a Symposium on the federal equity power hosted by the Notre Dame Law Review, canvasses the varying approaches that federal courts in equity have taken towards the sovereign. It then explores some implications of equity’s treatment of the sovereign for equitable doctrine and for our understanding of Article III’s reference to “Cases, in . . . Equity.” How to conceive of the sovereign in equity in a government without a sovereign was a problem that challenged the members of the first Congress and the first sitting Justices; it is a problem that continues to lurk in the law today.

Update:  At Legal Theory Blog, Larry Solum says: "Highly recommended."