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23 posts from July 2022


Jack Beermann on Kurt Eggert on Nondelegation and Originalism
Michael Ramsey

At Jotwell, Jack Beermann: Nondelegation and Originalism (discussing [favorably] Kurt Eggert, Originalism Isn’t What it Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary, 24 Chap. L. Rev. 707 (2021)).

Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.

Eggert’s opening salvo takes aim at the claim that the Framers of the Constitution adopted a theory of government embodied in John Locke’s Second Treatise of Government of 1689, which includes what originalists characterize as a sweeping rejection of legislators’ delegating lawmaking power. This is the basis of Professor Ilan Wurman’s argument in Nondelegation at the Founding, and, as Eggert points out, Justices Gorsuch, Rehnquist and Thomas have all cited Locke as a source for their argument that the Constitution incorporates a strict nondelegation doctrine. Adding to the chorus of scholars who reject the conclusion that the Framers embodied a nondelegation principle based on Locke’s Second Treatise, Eggert demonstrates convincingly that Locke’s influence had largely disappeared before the Constitutional Convention of 1787 and that his only real influence was in favor of rebellion in the 1770s, not on the structure of the new government created in the 1780s. In fact, only Anti-Federalists opposed to the Constitution relied heavily on Locke and then only to cite his natural rights theories as a reason to reject a powerful central government.

Among the most convincing discussions in Eggert’s fine article involves actual debates over nondelegation among the Framers, including James Madison’s contributions on the subject. Here he wisely cites Professor Nicholas Parrillo’s recent article on the subject, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, and an older article by Professors Eric Posner and Adrian Vermeule, Interring the Nondelegation Doctrine. Both conclude, after exhaustive study, that delegation was not a significant issue at the convention. Eggert also relies on another important set of occurrences at the convention, that James Madison twice suggested including a ban on delegation in the Constitution. Both attempts were, of course, rejected, which to many legal minds indicates that the convention disagreed with Madison. While rejection of a proposed amendment does not always indicate agreement on a contrary view, it borders on the bizarre to offer Madison’s rebuffed amendments as evidence that the convention agreed with his proposals, as some have done. Eggert convinced me that there is nowhere near enough evidence to support the view that the Framers silently but implicitly included a strong nondelegation principle in the Constitution.

I would say, contra Professor Beermann, that if true none of this would show that "originalism is not a credible legal theory" -- it it would just show that originalism doesn't support a strong nondelegation doctrine, and indeed can be a credible tool to refute such a doctrine.

From later on:

Some readers may find this whole discussion disconcerting, for it appears that Eggert is, at least in part, deploying originalist arguments to reject originalism. [Ed: No, per the above comment, he's deploying originalist arguments to reject the nondelegation doctrine.] Eggert agrees that he is no better equipped to discern whether the historical record supports a nondelegation doctrine than the lawyers and judges who disagree with his conclusions on the matter. But, as he points out more than once, the proponents of a strong nondelegation principle are urging courts to reject Congress’s determinations concerning the optimal distribution of regulatory authority. Without clear text and unequivocal historical support, the Supreme Court should leave the decision over agency power to Congress and not arrogate to itself the powers of a Council of Revision, which Eggert notes was also unsuccessfully proposed by James Madison. Opponents of judicial activism under vague provisions like the due process clauses do not hesitate to point out problems with judges imposing their will on the political branches, and the exact same critique applies to their advocacy of a strict nondelegation doctrine.

I think this argument highlights an important issue for originalism that hasn't been fully explored (by originalists, especially judicial originalists).  What's the right originalist result when the originalist sources are mixed (as they perhaps are on the nondelegation issue)?  Should originalist judges make the best assessment they can, even if the call is very close, or should they defer to the political branches unless the originalist outcome is reasonably certain?


Bad History at the Supreme Court?
Michael Ramsey

Many law professors and other authorities have claimed in popular commentary that the Supreme Court majorities in the June opinions used flawed, even dishonest, history.  I haven't seen much yet that proves the claim.

For example, there's this piece by Steven Lubet (Northwestern) at The Hill: The Supreme Court’s selective history.  He concludes:

What should be obvious is that Alito [in the Dobbs case], with his clerks’ assistance, plucked his sources from partisan briefs, selectively plugging them into his opinion, where they provided ostensible support. Granting that he checked the citations for accuracy, there is virtually no chance that he engaged in primary archival research of the sort that would take a history dissertation writer years to complete. Gorsuch (political science, Princeton) and Thomas (English literature, Holy Cross) were operating under the same time and resource constraints. Thomas admitted in a footnote that he bases his opinions “on the historical record compiled by the parties,” a practice that allows him to pick and choose the sources that best fit his narrative.

The result is a display of faux erudition. The originalist justices affect mastery of a vast literature, when in truth they barely scratch the surface, with no acknowledgement of what they missed, misunderstood, exaggerated or omitted.

But I don't see anything in his post (apart from assertion) showing that the Justices got the history materially wrong in Dobbs.  Here's everything the post says about the Dobbs opinion's history:

In Dobbs v. Jackson Women’s Health Organization, for example, Justice Samuel Alito looked to what he called our nation’s “history and tradition” to declare that the Constitution “does not confer a right to abortion.” Neither the Fourth Amendment’s “right of the people to be secure in their persons,” nor the Fourteenth Amendment’s guarantees of liberty and equal protection, or even the Eighth [ed.: Ninth!] Amendment’s recognition of unenumerated rights “retained by the people” met Alito’s historical test, which included a survey of “English cases dating all the way back to the 13th century.”

Alito’s tour of historical sources invoked such “eminent common-law authorities” as Sir Matthew Hale, a British jurist in the late 1600s, who once sentenced two “witches” to death and is best known today for advising juries to disbelieve rape victims.

This doesn't cast any real doubt on the history.  To begin, one might suppose from the post that the only sources the Dobbs majority invoked were 13th century authorities and Hale (which I agree standing alone would have been extraordinarily limited and unpersuasive).  Instead, the opinion extensively discusses evidence from eighteenth and nineteenth century America, which Professor Lubet doesn't mention.

Second, while I agree that the 13th century doesn't show much, the majority's  reliance (in small part) on Hale is important to show the absence of an abortion right in the American framers' English heritage.  True, Hale may have had some shockingly unenlightened views on witches and rape, but he's widely cited, not as a moral authority, but as a descriptive authority of the English law of his time.  More importantly, if Professor Lubet thinks Hale was wrong about seventeenth-century English law, he needs some evidence to show that.  If he doesn't think Hale was wrong, there's no point to the snark about witches.

That brings out the third and most crucial point.  The claim throughout the post is that the Justices are getting the history wrong (and, indeed, are unable to get it right, and perhaps dishonestly don't care).  But for that to be shown, one needs evidence.  The Dobbs opinion makes factual claims about the historical treatment of abortion -- in the 1600s, but more importantly in the 1700s and 1800s.  Is this history incorrect?  Is there evidence that abortion was understood as a right in those key times?  Perhaps so, but Professor Lubet doesn't provide any.  And without evidence that the majority got the history wrong, the claim of selective use of history collapses.

I think Professor Lubet's real problem with the Dobbs opinion is not its history but its interpretive methodology.  The starting point for the majority is that abortion shouldn't be recognized as a constitutional right today unless it was recognized as a fundamental traditional right around the time of enactment.  One can criticize that starting point as a mistaken view of constitutional interpretation (even as a mistaken view of originalism).  But that's very different from saying the majority, given its starting point, got the history wrong.  To show the latter, one needs to actually show ways in which the history is wrong.

(I don't mean to pick unduly on Professor Lubet, who is a very distinguished and capable scholar, and whose post is no worse than many criticizing last month's opinions.  But there's been a chorus of claims about the Court's alleged selective history, of which his is typical.  As with his, I think these claims are largely unproven, and actually arise principally from objections to interpretive methodology and modern outcomes rather than historical conclusions.)

(And if anyone can point me to evidence that the Dobbs majority actually got the history wrong in material ways, I'm happy to post it.  I don't have a stake in this, apart from questioning unsubstantiated claims about the Justices' history being wrong or dishonest.)

RELATED:  At Volokh Conspiracy, Josh Blackman comments on an essay by Allison Orr Larson criticizing the Court's history: "Professional Historians" Who File Amicus Briefs Are Motivated As Well.


Joel Alicea on Dobbs
Michael Ramsey

Though I have further thoughts on West Virginia v. EPA, I'm also shifting to some posts on Dobbs v. Jackson Women’s Health Organization, which calls for some dispassionate evaluation from an originalist perspective.  To begin, here's Joel Alicea (Catholic) in City Journal: An Originalist Victory - The Supreme Court’s Dobbs ruling is a tremendous success for the constitutional theory around which conservatives rallied for nearly half a century.  From the introduction:

To acknowledge this achievement [of overturning Roe and Casey] is to acknowledge the constitutional theory around which the coalition that brought it about rallied for a half-century: originalism. It was originalism that the pro-life movement adopted after Roe and supported through the confirmation defeat of Robert Bork; the attempted defeats of Clarence Thomas, Samuel Alito, and Brett Kavanaugh; and the setback of Casey. The goal of overruling  Roe and Casey bound the conservative political movement to the conservative legal movement, and originalism was their common constitutional theory. Dobbs thus had the potential—as I argued in an earlier essay—to exacerbate the tensions over originalism within the conservative legal movement. It would be viewed as the acid test of originalism’s ability to translate theory into practice, and there would be no avoiding the stakes for the conservative legal movement in the case: “complete victory or crisis-inducing defeat,” as I put it. We now know that it was a complete victory, and it was, in large part, originalism’s victory.

Yet over the last few months, two arguments have been made by some within the conservative legal movement calling that conclusion into question: one from originalism’s critics, the other from originalists themselves. The first argument is that Dobbs is not much of a victory since it returned the issue of abortion to the political process rather than outlawing abortion altogether. The second is that the Dobbs majority opinion is not, in fact, originalist in its methodology, with the implication that, even if Dobbs is a victory, it is not a victory for originalism. Both critiques, explicitly or implicitly, deny that Dobbs represents a triumph for originalism.

Both critiques are mistaken. Dobbs is, without question, a triumph for originalism and a vindication of the support given to originalism by the conservative legal and political movements since Roe was decided almost half a century ago....

And from later on:

The second critique comes from within originalism’s ranks and argues that Justice Alito’s majority opinion in Dobbs is not originalist in methodology. ... This analysis has the implication, sometimes stated by these critics and sometimes not, that Dobbs is not much of a triumph for originalism.

Before delving into this critique, it is important to understand that, for the reasons just discussed, Dobbs is a tremendous victory for originalism, even if the Dobbs opinion could be characterized as non-originalist in its methodology. For one thing, as Lee Strang has pointed out, as originalism has become the dominant theory at the Court, it has influenced how the justices approach decisions that are clearly at odds with originalism, such as Roe and Casey: “[O]riginalism exerts a gravitational effect that pulls errant doctrine back toward the original meaning.” Relatedly, originalism is the theory that made obvious to lawyers, judges, and the general public that the Roe and Casey decisions were insupportable as a matter of constitutional law, and it is the theory that formed the legal views of the justices who voted to overrule those decisions. Neither conventional conservative non-originalism nor common-good constitutionalism achieved any of those things.

The argument that Dobbs is a non-originalist opinion has been advanced by several commentators. The most sophisticated version of the critique comes from Lawrence Solum, widely considered one of the leading theorists of originalism. His views on any question like this must be taken seriously. Solum has not argued that, because he sees Dobbs as a non-originalist opinion, originalism does not deserve credit for the result. But since others have drawn that implication from critiques like his, it is worth addressing on its own terms....

...Thus, according to Solum, because Dobbs accepts a non-originalist substantive-due-process framework and uses the non-originalist Glucksberg test to analyze whether there is a right to abortion under that framework, it is a non-originalist opinion.

But that conclusion fails to account for several important points. ...


Tom Merrill on West Virginia v. EPA
Michael Ramsey

At Volokh Conspiracy, Tom Merrill (Columbia) is guest blogging about the opinion in West Virginia v. EPA.  Here are his initial posts: 

West Virginia v. EPA: An Advisory Opinion?

West Virginia v. EPA: Was "Major Questions" Necessary?

West Virginia v. EPA: What Would Have Been the Result Under the Chevron Doctrine?

The second post highlights one of my main concerns about the majority opinion, which seemed to bypass an ordinary textualist evaluation of the statute to get to the major questions canon.  From Professor Merrill's analysis:

The Supreme Court held in West Virginia v. EPA that the federal agency did not have authority to adopt what amounted to a cap-and-trade system for existing fossil-fueled power plants because this raised a "major question" of "economic and political significance" as to which Congress had not clearly delegated authority to the EPA. But a close reading of the relevant statute, Section 111 of the Clean Air Act, indicates that the EPA has no authority to issue legally binding emissions standards for existing stationary sources—period.

So the Court did not have to create a novel legal doctrine to limit the authority of the Biden Administration to adopt something like the Clean Power Plan. It could have reached the same result simply by paying close attention to the language of the statute that purportedly granted such authority. ...

[some intricate statutory analysis follows]

In any event, the key point for present purposes is that the EPA is given very different authority to regulate new stationary sources as opposed to existing sources. Under Section 111(b)(1)(B), which applies to new sources, EPA is instructed to "promulgate" (and periodically revise) "standards of performance" for new sources. The statute expressly requires that these EPA-promulgated standards be developed using notice-and-comment rulemaking, which is required under the Administrative Procedure Act when agencies issue legally binding legislative rules.

In contrast, under Section 111(d), EPA is instructed to "prescribe regulations which shall establish a procedure similar to that provided by [Section 110] under which each State shall submit to the Administrator a plan which . . . establishes standards of performance for any existing source for any air pollutant [subject to exceptions]." Note that, under subsection (d), it is the states, not the EPA, that "establis[h]" the "standards of performance." EPA's authority is to establish procedural regulations about the manner in which the states are to submit to the EPA the standards they are establishing.


All of which suggests the desirability, to which I will return in the last entry (after the forthcoming third and fourth posts), of courts carefully considering the actual authority delegated to agencies, as opposed to ruminating about "major questions."

Agreed.  I have difficulty extracting from the majority opinion whether the Court thinks the statute is (a) ambiguous, so the major questions canon resolves the ambiguity, (b) textually favorable to the EPA, but the major questions doctrine overrides what would be the technically more textualist reading, or even (c) textually favoring West Virginia, with the major questions doctrine confirming that reading.  This seems to be the key passage from the majority:

Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U. S., at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. Ibid.

The dissent criticizes us for “announc[ing] the arrival” of this major questions doctrine, and argues that each of the decisions just cited simply followed our “ordinary method” of “normal statutory interpretation,” post, at 13, 15 (opinion of KAGAN, J.). But in what the dissent calls the “key case” in this area, Brown & Williamson, post, at 15, the Court could not have been clearer: “In extraordinary cases . . . there may be reason to hesitate” before accepting a reading of a statute that would, under more “ordinary” circumstances, be upheld. 529 U. S., at 159. Or, as we put it more recently, we “typically greet” assertions of “extravagant statutory power over the national economy” with “skepticism.” Utility Air, 573 U. S., at 324. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of “clear congressional authorization,” ibid.—confirms that the approach under the major questions doctrine is distinct. 

These paragraphs seem to conflate positions (a) and (b) -- and perhaps even (c) -- above.   And the result is that it's hard to know when the major questions canon comes into play or how it is justified.


Patterico on Moore v. Harper and the Independent State Legislature Doctrine
Michael Ramsey

From Patterico at Substack: In Defense of the Independent State Legislature Doctrine, Part 1: The "radical" idea that can be found only in the minds of crazed Federalist Society conservatives . . . and, oh yeah, also in the text of the Constitution itself.  From the introduction:

The Supreme Court has agreed to hear a case called Moore v. Harperinvolving a theory known as the “independent state legislature” doctrine (ISLD). The left confidently declares this doctrine to be radical and insane — a recently concocted bit of buffoonery by Federalist Society types who can’t really be serious. Matthew Cooper of the Washington Monthly calls it “the crazy ‘independent legislature’ doctrine.” The reliably incorrect Ian Millhiser at Vox declares Moore v. Harper to be “perhaps the gravest threat to American democracy since the January 6 attack.” Steve Benen terms the ISLD “an obscure idea” that could be used to overthrow presidential elections. Rick Hasen calls it an “extreme position” that “could help foment election subversion.” NPR says it “could radically reshape elections for president and Congress.” Radley Balko has a typically sober and restrained take, writing that he “[c]an’t emphasize enough how batshit this is.”

What is this obscure, crazy, extreme, radical position that has the lefties (and, as we will see, Michael Luttig) in such a lather? As it turns out, it is really nothing more than reading the Constitution to mean what it says. There are arguments against the ISLD, some of which are plausible and some of which are just silly. It’s my purpose in this set of pieces to begin to evaluate them for you. But any rational discussion of the subject has to acknowledge that the doctrine really does nothing more than give a plain reading to the clear text of the Constitution — which, the last time I checked, was still the supreme law of the land.

The discussion will proceed in at least two parts, because putting them in a single newsletter challenged the Substack length limits. Today, I will discuss the textual basis for the ISLD. I will note that support for the ISLD does not imply that legislatures may follow the Trump Blueprint of holding an election and then changing the results if they don’t like them. That idea actually is insane. Then, for paying subscribers, I will take on the issue of whether state legislative action in this area can be trumped by state constitutional provisions. (Hint: I believe it is not.)

And from later on:

So what does this wacky independent state legislature doctrine say? Well, it says that when the Constitution uses the phrase “the Legislature thereof” in the above passages [that is, Articles I, Section 4 relating to selection of Senators and Representatives and Article II, Section 1 relating to selection of presidential electors], it refers to the state legislature and not the state’s entire tripartite political structure, including the judiciary and the executive.

That’s it. That’s the whole crazy theory: that the word “legislature” means “legislature.” Damn those Federalist Society types!!!1!!!

I have included bold emphasis in my quotes from the Constitution above, to make it clear that the Constitution says that “the Legislature” of a state is the body that decides the “Manner” in which electors are chosen in that state, as well as “The Times, Places and Manner” of elections for Senators and Representatives.


Now, of course, it’s not entirely that simple. There is a whole cottage industry of commentary out there designed to convince you that the word “legislature” doesn’t really mean “legislature,” and you may or may not be surprised to learn that these arguments are not always completely insane. I find some of them supremely unpersuasive and others slightly more plausible. If you’re going to discuss this issue intelligently, you should know what these arguments are. Some of these arguments are addressed today, and some will be addressed in a future newsletter.

But before we get to those arguments, I want to caution readers that, just because the state legislatures are in charge under the ISLD, that does not mean they should get to invalidate statewide presidential elections that have already occurred. I think that is one of the biggest concerns of those worried about state legislatures having plenary control over appointing electors....

As the excerpts suggest, this is as fun a read on the independent state legislature doctrine as you're likely to find.  And I think it's largely correct to this extent:  state legislatures (and only state legislatures) get to pick the method of selecting members of Congress and presidential electors.  That conclusion does not answer a secondary question as to the extent to which legislatures are constrained in making this choice by the ordinary rules of legislation in their respective states.  But I do think a fair implication of the constitutional language is that state executives and (especially) judges do not get to make the choice.  And it seems that that may be what has been happening in at least some cases.

(Also I agree that some of the commentary on Moore v. Harper has been extraordinarily intemperate and apocalyptic). 

(Thanks to Andrew Hyman for the pointer).


Stephen Sachs on Mallory v. Norfolk Southern
Michael Ramsey

Stephen E. Sachs (Harvard Law School) has posted his Brief as Amicus Curiae in Support of Neither Party, Mallory v. Norfolk Southern Railway Co. (42 pages) on SSRN.  Here is the abstract:

Mallory v. Norfolk Southern Railway Co. [pending at the Supreme Court next term] presents the question whether the Fourteenth Amendment’s Due Process Clause prohibits Pennsylvania from requiring corporations to consent to general jurisdiction in order to do business there. The answer to that question is no. Neither the Court’s precedent nor the original Fourteenth Amendment forbids Pennsylvania from requiring such consent, nor from exercising jurisdiction once consent is secured.

What may invalidate Pennsylvania’s requirement, however, is the Court’s modern doctrine on the “dormant” component of the Commerce Clause, which is currently thought to restrict state laws imposing serious burdens on out-of-state economic actors. The difference between due process and dormant commerce matters: substantive requirements of the Fourteenth Amendment may not be relieved by Congress or by treaty, while dormant commerce restrictions might be. The Court should not limit state jurisdiction under a mistaken due process theory that in passing also limits the authority of Congress (and of the President and Senate). Instead, the regulation of interstate corporate activity should be left up to the Interstate Commerce Clause, to be addressed by the state courts on remand.

And from the Summary of Argument, more on the original meaning of the due process clause:

1. Pennsylvania’s registration requirement and its exercise of jurisdiction do not violate due process. The governing precedent is clear on the matter, see Pa. Fire Ins. Co. of Phila. v. Gold Issue Mining &Milling Co., 243 U.S. 93 (1917), and this precedent should not be overruled. In particular, the modern case law on general jurisdiction, from International Shoe Co. v. Washington, 326 U.S. 310 (1945), through Daimler AG v. Bauman, 571 U.S. 117 (2014), down to the present day, is in no conflict with Pennsylvania Fire. These modern cases are explicitly limited to jurisdiction over unconsenting defendants. One may respect the force of these precedents without expanding them to cover defendants whose consent has been granted, albeit grudgingly—and without overruling other precedents along the way.

2. Stare decisis aside, Pennsylvania Fire should not be overruled for the simple reason that it appears to have been correct. The Fourteenth Amendment did not impose substantive rules of jurisdiction, hidden (as if by invisible ink) within the words “due process of law.” It required only that a state court have jurisdiction under applicable sources of law, including principles of general and international law, which have long recognized consent as an appropriate ground for the exercise of jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 733, 735 (1878); see generally Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1297–1300 (2017); Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 1723–26(2020).

3. These principles applied equally to corporations such as respondent Norfolk Southern Railway Co. American courts traditionally understood corporations as creatures of state law, lacking in their own right the privileges and immunities of citizens. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 178–82 (1869), overruled on other grounds, United States v. Se. Underwriters Ass’n, 322 U.S. 533 (1944). States could deny corporate privileges to foreign corporations altogether, or they could extend these privileges by statute or by comity; they could also impose restrictions on the local exercise of these privileges, such as by requiring consent to suit via the appointment of agents for service of process. See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 586–91 (1839); Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404, 407–09 (1856); Pennsylvania Fire, 243 U.S. at 95–96. Courts in this period ... did not disagree on what would happen if a corporation really did register, as Norfolk Southern has, under a statute making registration a ground for general jurisdiction. Such requirements were not regarded as unconstitutional conditions, but as lawful regulations of the corporate form.

Seems probably right to me (as to the due process issue).  Put another way, I'm not aware of any enactment-era or immediate post-enactment practice or commentary suggesting that states couldn't impose this requirement.  I have a lot more reservations about the dormant commerce clause issue, but then I have a lot more reservations about the dormant commerce clause generally.


Larry Solum's Legal Theory Lexicon: Living Constitutionalism [Updated]
Michael Ramsey

At Legal Theory Blog, Larry Solum has this entry in the "Legal Theory Lexicon": Living Constitutionalism.  From the introduction: 

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historic rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism. ...

And some interesting history:

The phrase “living constitutionalism” seems to be derived from the title of a book by Howard Lee McBain, The Living Constitution, first published in 1927.  This slim volume ranges across a variety of topics, and it was not intended as rigorous constitutional theory.  The following passage illustrates McBain’s notion of a living constitution:

“A word”, says Mr. Justice Holmes, “is the skin of a living thought.”  As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed.  The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase.

In 1936, Charles Beard echoed McBain’s title in an essay published in the Annals of the American Academy of Political and Social Science.  Beard wrote,

Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings, it follows that the Constitution as practice is a living thing. The document can be read at any moment.  What the judges and other expounders have said in the past can be discovered in thousands of printed pages.  From the records of history, we can get some idea of past practices under the instrument. But what the Constitution as practice is today is what citizens, judges, administrators, lawmakers, and those concerned with the execution of the laws do in bringing about changes in the relations of persons and property in the United States, or in preserving existing relations.  It is the living word and deed of living persons, positive where positive, and subject to their interpretation where open to variant readings. How could it be otherwise? How could intelligence, as distinguished from sophisticated interest, conceive the document as practice in any other terms?[

Another important formulation was provided by Charles Reich in his 1963 article, Mr. Justice Black and the Living Constitution:

[I]n a dynamic society the Bill of Rights must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. That, indeed, is what has happened to some of the safeguards of the Bill of Rights. A constitutional provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change.

And a fourth influential formulation of living constitutionalism was offered in 1986 by Justice William Brennan:

To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of the substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances.  The Framers discerned fundamental principles through struggles against particular malefactions of the Crown: the struggle shapes the particular contours of the articulated principles.  But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours.

The opponents of living constitutionalism offered their own definitions: for example, in 1976, then Associate Justice William Rehnquist wrote The Notion of a Living Constitution, which explicitly criticized living constitutionalism and implicitly endorsed originalism based on the writings of the framers. ...

Like "originalism," the term "living constitutionalism" is best viewed as the name for a family of theories, some of which are explored below. Our next step is to explore the relationship between originalism and living constitutionalism. ...

Somewhat lost in these excerpts and what follows is what I consider to be the essential postulate of living constitutionalism: that judges should impose what they believe to be the best constitutional rules for modern society, taking into account modern circumstances and moral visions.  Some versions of living constitutionalism are more forthright about this claim than others, but in my view all versions of living constitutionalism reduce in large part to this fundamental proposition.  That doesn't mean that living constitutionalism is normatively inappropriate; it means only that living constitutionalism (of whatever variety) must defend this core proposition.

As an aside, almost all of the criticisms of recent Supreme Court decisions in popular commentary claim that the Justices are simply imposing their own practical and moral intuitions as constitutional rules.  If that's true, it only means that the Justices (implicitly) have adopted living constitutionalism.  And that's a bad thing only if living constitutionalism is a normatively inappropriate approach to constitutional interpretation.

UPDATE:  Eric Segall comments:

As I wrote in 1998, the first use of the phrase living constitutionalism actually was in a law review article (in two parts) by Arthur W. Machen in 1900. That article was directly about originalism, our changing constitution, and living constitutionalism. 


Chad Squitieri on Textualism and the Major Questions Doctrine
Michael Ramsey

At NRO Bench Memos, Chad Squitieri (Catholic): Can Major-Questions Doctrine Actually Get Congress to Legislate Again? On textualism and major questions doctrine in West Virginia v. EPA

In [West Virginia v. EPA], the Court’s conservative majority invoked the “major questions doctrine.” That freshly minted doctrine holds that an administrative agency may only regulate matters of “vast economic and political significance” when the agency is empowered to do so via statutory language that puts matters regulated within the agency’s authority in an especially clear way. In her dissenting opinion, Justice Kagan explained how the major questions doctrine is inconsistent with textualism — the theory of statutory interpretation associated with the late Justice Scalia, pursuant to which judges focus on statutory text, structure, and history. Justice Kagan is correct.

I am a committed textualist and a law professor who researches administrative law topics such as those at issue in West Virginia. Although I strongly agree with the majority opinion and Justice Gorsuch’s concurrence in West Virginia that the Court must enforce constitutional limits on Congress’s ability to delegate lawmaking authority to administrative agencies, the major questions doctrine is not the right way for textualists to do it, as I’ve argued at length elsewhere. That is so for two reasons.

First, the major questions doctrine purports to empower a judge to change how he interprets a statute based on whether he thinks a case presents a question of “major” political and economic significance. But a statute says what it says irrespective of whether it implicates a major political controversy. In any event, judges are not politicians. Judicial decisions premised on political calculations are therefore a risky endeavor, as a judge might be mistaken as to which questions are of true political significance. Indeed, because federal judges are constitutionally insulated from politics, they are particularly ill-suited to identify which questions are of enhanced political importance. Such decisions are better left to our elected representatives, whose political calculations can be assessed at the ballot box.

Second, the major questions doctrine is statutorily suspect. The doctrine flows from the judge-made presumption that Congress intends to decide major political questions itself rather than empower administrative agencies to decide such questions. But the Congressional Review Act exhibits that Congress presumes the precise opposite. Specifically, the Congressional Review Act acknowledges that administrative agencies — not Congress — will answer major questions through “major rules.” The Act’s definition of “major rule” similarly considers economic and political significance, and the Act requires that each major rule be given legal effect unless Congress affirmatively enacts new legislation stating that a particular major rule should be rejected. The major questions doctrine — which essentially refuses to give legal effect to major rules unless Congress clearly granted the agency authority to issue the rule — turns Congress’s chosen regulatory procedure on its head. In short, the Congressional Review Act demonstrates that judges are wrong to presume that Congress intends to decide major questions itself.

I hope to post a few of my own thoughts on West Virginia v. EPA shortly, but as a general matter I think there's a lot of force to this analysis.

RELATED:  At Volokh Conspiracy, Jonathan Adler: Justice Kagan Throws Down the Gauntlet: We Are Not "All Textualists Now" - In her forceful West Virginia v. EPA dissent, Justice Kagan challenges the majority's commitment to textualism.  After describing Justice Kagan's dissent, Professor Adler comments:

While her analysis is powerful, Justice Kagan does not fully grapple with the portions of the Clean Air Act that undermine her conclusions. Rather, she focuses on the word "system" in "Best system of emission reduction," without really engaging with those portions of the Act that indicate such systems must be adopted on a source-specific basis. To be fair, however, the majority opinion does not really call her on it, resting more heavily on the major questions doctrine than on close and careful statutory analysis. (In this regard, the majority opinion has some parallels with the opinion in NFIB v. OSHA.) Justice Gorsuch's concurrence defends the provenance of the major questions doctrine, but it too fails to square off with Kagan on the statutory text.


Adrian Vermeule on West Virginia v. EPA; Devin Watkins Responds
Michael Ramsey

In the Washington Post, Adrian Vermeule: There is no conservative legal movement - Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.  From the introduction: 

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

... [A]s this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.
It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods. ...
At the Federalist Society Blog, Devin Watkins responds: Originalism’s Still Around, No Matter What Adrian Vermeule Says.  From the introduction: 

I was taken aback when I read Adrian Vermeule’s recent Washington Post op-ed, which alleges that the U.S. Supreme Court’s West Virginia v. Environmental Protection Agency decision is unprincipled, results-oriented, and bereft of jurisprudential method. Indeed, when Professor Vermeule insists that the decision cannot be reconciled with originalism, he argues that “There is no conservative legal movement”—largely to defend his theory that the opinion’s use of the major questions doctrine and the nondelegation doctrine represent a wholesale abandonment of originalist principles. In particular, Vermeule argues that “the originalist credentials of the nondelegation doctrine are shockingly thin”—alleging that the nondelegation doctrine’s relatively recent emergence makes it incompatible with originalism. Similarly, Vermeule charges that the major questions doctrine (which rests on the nondelegation doctrine) is without grounding in any “venerable maxim or principle of our law; one will search for it in vain in the pages of Blackstone.”

Vermeule’s claims are groundless. An examination of legal history demonstrates that the nondelegation doctrine—and its legal offspring, the major questions doctrine—is deeply rooted in the history of American and English law.

The nondelegation doctrine emerged from English common law before the United States ever existed. What we think of as the English Constitution was a set of unwritten norms that developed over centuries. That Constitution was a set of common understandings that were, in part, developed by a system of governance that made it possible to learn from mistakes: more precisely, those understandings were informed in part by carrying out a terrible misstep of governance, seeing its horrible consequences, and then proclaiming that we must never make such a mistake again.

The incident that triggered the creation of the nondelegation doctrine was the Proclamation by the Crown Act of 1539. ...


Bruen is Wrong, Because Heller and McDonald are Wrong
David Weisberg

New York State Rifle Association & Pistol Inc. v. Bruen struck down New York’s “proper-cause” requirement for an unrestricted license to carry a concealed firearm.  (Posts herehere, and here discuss the case.)  The correctness of the result in Bruen depends on the correctness of D.C. v. Heller and McDonald v. Chicago, and McDonald depends on Heller.  I think all three were wrongly decided.  (A more complete statement of my view is here.)

Justice Scalia’s majority opinion in Heller is both foundational and fatally flawed.  The greatest obstacle to recognizing its flaw is, ironically, the fact that Justice Scalia is correct in his main dispute with Justice Stevens.  They wrangled over whether the 2nd Amendment (per Stevens) prohibits the federal government from infringing the right of the people to keep and bear arms only while they are serving in a State’s militia, or (per Scalia) prohibits the federal government from infringing that right regardless of militia service.  The drafters could have written: “The right of the people to keep and bear Arms, when serving in the well-regulated Militia of a State, shall not be infringed.”  They didn’t.  Score one for Scalia.

But Scalia’s victory in what apparently is “the main event” obscures his fatal error regarding the source of the right.  Scalia asserts: “[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”  (554 US 592, original emphasis.)  The question arises: What is the source of that pre-existing right?  Scalia’s answer: “self-defense … was the central component of the right itself.”  (554 US 599, original emphasis.) 

Arms of all kinds—pistols, rifles, etc.—can be used in self-defense, but so can a brick.  The fact that a firearm can be used in self-defense does not establish that the right to self-defense is the central component of the right to own and use firearms, any more than the fact that a brick can be used in self-defense establishes that the right to self-defense is the central component of the right to buy, keep and use a load of bricks. If self-defense were indeed the central component of the arms-bearing right, one would expect the 2nd Amendment to read something like: “Self-defense, being a right enjoyed by every person, the right of the people to keep and bear Arms, shall not be infringed.”  It does not.  A red flag waves.    

I believe there are irrefutable objections to Scalia’s idea that self-defense is the central component of the pre-existing right.  The first derives from Scalia’s reliance on Blackstone, who “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.”  (554 US 594.)  But that provision says: “That the Subjects which are Protestants, may have Arms for their Defense suitable to their conditions, and as allowed by Law.”  (554 US 593.)  This may well indicate, as Scalia argued, that the right isn’t limited to militia service, but it contradicts the notion that self-defense was the central component of the right. 

Surely Catholics in England in 1689 had a right of self-defense even if they could not lawfully have arms for their defense, and Protestants themselves were limited in their right to have arms.  I submit that self-defense cannot be the central  component of an arms-bearing right that is limited by social condition or by law, because in 1689, 1791 or 2022 one may do literally anything—including using a weapon that one is prohibited by law from owning or using—in a valid case of self-defense.  Of course, if I use a firearm which I am not licensed to possess or use, I may be criminally liable for that offense.  Nevertheless, I would still have a perfectly valid claim of self-defense if I used that unlicensed firearm to injure or kill a person who presented an imminent unlawful threat of grave bodily harm to me or any other person.

A second objection—Scalia writes:

Like most rights, the right secured by the Second Amendment is not unlimited. … [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  (554 US 626-27, footnote omitted.)

But the “longstanding prohibitions” on the arms-bearing right are all inconsistent with the supposed central component of the right.

If self-defense is the central component of a right, it would follow that a limitation on the right would be a limitation on self-defense.  But none of Scalia’s limitations on arms-bearing are limitations on self-defense.  If, e.g., I use a firearm in a public building where firearms are prohibited, that prohibition would be irrelevant to my affirmative defense of self-defense.  I could be punished for violating the prohibition, but the prohibition remains irrelevant to the issue of self-defense.  The same irrelevance obtains with respect to every one of Scalia’s limitations.

A third objection: Scalia relies on U.S. v. Cruickshank, 92 US 542 (1876)in which the Court vacated the convictions of white men who had killed several black men; the defendants were convicted of violating the decedents’ rights under federal law and the Constitution by, inter alia, depriving them of rights under the 2nd Amendment.  Cruickshank vacated the convictions because the right referred to in the 2nd Amendment pre-existed that amendment and thus was “not a right granted by the Constitution[.]”  (92 US 553.)  

Justice Scalia cites Cruickshank for two purposes: to confirm that the right referred to in the 2nd Amendment pre-exists the amendment (554 US 592), and to support the “individual-rights interpretation” of the 2nd Amendment.  He says this about the latter:

There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack[.] … We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’” and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. … That discussion makes little sense if it is only a right to bear arms in a state militia.  (554 US 620, citations and footnotes omitted.)

Thus, Scalia himself asserts (and I agree) that “the States’ police power” underlies the arms-bearing right.  Yet he also approvingly notes Blackstone’s recognition of “the natural right” of self-defense.  (554 US 594.)  But natural rights are the opposite of rights created or protected by “the State’s police power.”  The “self” in “self-defense” contradicts the notion that the right of self-defense is dependent on a State’s police power.  Thus, if the State’s police power enforces citizens’ arms-bearing rights (as Scalia himself asserts), then the natural right of self-defense cannot be the central component of those rights.

Fourth objection: Scalia asserts that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right … was codified in a written Constitution.”  (554 US 599.)  But the primary targets of an overbearing federal government would be the States, which is why the 2nd Amendment prefatory clause recites: “A well regulated Militia, being necessary to the security of a free State[.]”  If the States are the entities primarily threatened by a potentially overbearing federal government, it makes perfect sense to have each State determine, through its own laws and constitution, who among its citizens shall be armed.  It makes no sense to say that, because the States might be threatened, every individual person has a right, derived from some fanciful connection to the right of self-defense, to be armed.   

In sum, on a proper understanding of the 2nd Amendment, each State decides who will be permitted to be armed within its borders, and under what conditions that permission will be granted.  The amendment serves only to prohibit the federal government from interfering in those decisions.  That is why HellerMcDonald and Bruen were all wrongly decided.