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15 posts from August 2022


How Many Law Professors Are Originalists?
Mike Rappaport

While the Supreme Court appears to have four originalists (Barrett, Gorsuch, Kavanaugh & Thomas) along with two fellow travelers (Alito & Roberts), how many originalists are there in the legal academy?  Most people have the impression that relatively few professors are originalists, and a new survey of law professors suggests that impression is correct. 

In a survey of law professors from the top 20 and top 50 schools, one of the questions was “What theory should judges apply when interpreting the U.S. Constitution?”  For professors from the top 20 schools: Living Constitutionalism was strongly accepted as an appropriate theory, where “strongly accepted” meant that more than 2/3 of the professors who answered accepted it.  Common law constitutionalism was also strongly accepted.  Pluralism was merely “accepted,” which meant that more than half of the professors who answered accepted it.

What were the results for originlism?  Originalism was strongly rejected, meaning that more than 2/3 of the professors rejected it as an appropriate theory.  Thus, living constitutionalism was strongly accepted; originalism was strongly rejected.  No surprise there.

Similar results applied for professors from the top 50 schools.

How many professors indicated that originalism was an appropriate theory for interpreting the Constitution?  Based on professors from the top 50 schools plus some other law professors, the results indicate that only 18.6 % of law professors believe originalism is an appropriate theory of constitutional interpretation.

Obviously, these results indicate that the law professoriate holds very different views than the current Supreme Court.  So it should not be surprising that law professors will strongly criticize the Court.

Another question is how well the current crop of law professors can teach students about the originalist view often voiced by the Supreme Court.  Of course, one does not have to agree with a view to teach it.  But to teach it well, professors should be able to voice the originalist view as an originalist would voice it.  Put differently, they should be able to do a good job of passing an ideological Turing test for an originalist.

It is a challenging task to teach a view one disagrees with.  Here’s hoping that we -- both originalists and nonoriginalists -- are up to the task.   

William Baude on the Supreme Court's Use of History
Michel Ramsey

In the Washington Post, William Baude: Of course the Supreme Court needs to use history. The question is how.  From the introduction:

The Supreme Court’s seismic term was notable not only for the decisions it reached but also how it reached them: making extensive use of history. This might seem like a bad development — turning back the clock on societal progress and calling for judges to do hackish, “law-office history.” But it is not. The question going forward is not whether the court should use history but how.

The court finds itself using history for both legal and practical reasons. History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

These uses of history, ironically, provide support for powerful legal change. If the court is to overturn nearly 50 years of precedent, as it did in Dobbs v. Jackson Women’s Health Organization, it points to something even older and more deeply rooted than Roe v. Wade itself — the history and tradition surrounding the Constitution. So, too, if the court is to second-guess the gun-control legislation of modern jurisdictions, as it did in New York State Rifle & Pistol Association v. Bruen, it does so by pointing to the Constitution’s text and history.

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.

And in conclusion: 

This brings us to the broader lesson. In recent years, many critics of the court — including some dissenting justices — have ceded the initiative. They have tried to shield themselves behind precedents or to poke holes in the majority’s arguments without advancing a competing constitutional theory.

That is true even of recent dissents that engaged superficially on historical grounds. That will not be enough. The court’s increasing reliance on history creates an opportunity for those critics to provide their own rigorous account of our law and constitutional tradition. To seize that opportunity, they will have to make the best use of history, not try to escape it.


An Originalist Defense of the Major Questions Doctrine
Michael Ramsey

I was initially skeptical of the major questions doctrine (MQD), as deployed by the Supreme Court in West Virginia v. EPA – basically for the reasons expressed by Chad Squitieri, Tom Merrill and Jonathan Adler.  But with everyone ganging up on the MQD, my contrarian instinct pushes me the other way.  So here is a tentative defense.

First, I assume that the Constitution’s original meaning contains some reasonably strong version of the nondelegation doctrine, that is, that Congress cannot delegate important legislative matters to the President (or administrative agencies) as a result of Article I, Section 1’s vesting of “all legislative Powers” in Congress.  (For a quick overview of the argument, see here from Devin Watkins).  I’m not sure that’s right, but it needs to be right for the argument to work.

Second, I assume that the line between permissible and impermissible delegations is so difficult to define and apply that, except in extreme cases, the nondelegation rule is basically nonjusticiable, as held by the Supreme Court (per Justice Scalia) in the Whitman case.  Again, I’m not sure that’s right, but I’m assuming it for purposes of the argument.

Third, I assume that Congress will often enact broad statutes in which the extent of the intended delegation is uncertain.  (I’m pretty confident that’s true).

Now for the argument:

The Court has a common and longstanding practice of developing clear statement rules (whether actually called by that name or not), by which the Court avoids an expansive reading of a statute unless Congress is clear in directing the expansive reading.  For example, a clear statement is needed before a statute is read to interfere with a state’s internal governance (Gregory v. Ashcroft), to apply to purely local activity (Bond v. US), to apply extraterritorially (Morrison v. National Australia Bank), or to impose criminal penalties (the rule of lenity).

Probably the earliest version in US federal law is the “Charming Betsy” rule, requiring a clear statement before a statute is read to violate international law.  (The rule takes its name from Chief Justice Marshall’s decision in Murray v. The Charming Betsy (1804), but Marshall applied a version of it even earlier, in Talbott v. Seeman in 1801).  Specifically Marshall wrote in Charming Betsy: “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”

I’m not sure that’s good enough for a strict textualist, but as an originalist matter that’s a pretty strong practice.  (Also, for what it’s worth, Justice Scalia endorsed most or all of the modern clear statement rules).

In my view, these rules aren’t really about finding the true meaning of the statutory text.  I doubt, for example, we can assume that, absent a clear statement, Congress doesn’t want to violate international law, interfere with states’ internal governance or create criminal penalties.  Rather, these are rules of judicial restraint, avoiding a broad reading of a statute where the meaning is uncertain and there are severe costs to the court erroneously reading the statute broadly.  So the basis of the Charming Betsy rule is best understood as the negative effects for U.S. foreign relations of international law violations; better for the Court to err on the side of not reading a statute to violate international law (an error Congress can correct) than to err on the side of wrongly endorsing a violation of international law.

Thus, the fact that the MQD applies a clear statement rule instead of applying close textual analysis isn’t novel or contrary to originalism.  To be consistent with historical practice, though, this particular clear statement rule needs to protect against some substantial negative effect of overreading a statute.  For the MQD, I think that argument can be made, if one accepts the assumptions posited at the outset of this post.  Nondelegation is an important constitutional value, assuring that the people’s representatives in Congress make legislative decisions through a deliberative and accountable process.  But since the Court can’t enforce nondelegation directly and delegating statutes are often ambiguous as to their scope, there’s a substantial risk courts will err in reading statutes too broadly, allowing too much delegation to the President or the agencies.  (By “too much delegation” I mean more than is appropriate in a system that values deliberative decisions by the people’s representatives as to important legislative matters.)  As a result, there’s good reason to have a clear statement rule to protect against judicial error, the same way Marshall protected against erroneous interpretations that violate international law in the Charming Betsy case.


John Witte: What’s Clear and Not So Clear About the Original Intent of the First Amendment
Michael Ramsey

John Witte Jr. (Emory University School of Law) has posed Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment (47 BYU L. Rev. 1303 (2022)) (82 pages) on SSRN.  Here is the abstract:

This Article peels through the layers of America's founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today.

Is Dobbs an Instance of Originalism?  Yes and No.
David Weisberg

In the Dobbs majority opinion, the analysis of “liberty” in the Due Process Clause of the 14th Amendment does not even purport to examine the original public meaning of that word in the context of the phrase, “[N]or shall any State deprive any person of … liberty … without due process of law.”  But even if one accepts the methodology of Justice Scalia’s original-public-meaning originalism, the original public meaning of “liberty” in 1868 is irrelevant to the issue in Dobbs.  This conclusion follows from the fact that, as understood by the Dobbs majority (and without opining as to the correctness of that understanding), the entire phrase from the Due Process Clause is a term of art.  That is, the phrase has a special meaning in the law that inevitably diverges from whatever might be its original public meaning. 

The Dobbs majority treats the phrase as a legal term of art when it holds that, within the Due Process Clause, the term “liberty” must refer either to one of the enumerated rights in the Bill of Rights, or to a right that is “deeply rooted in this Nation’s history and tradition.”  (Dobbs majority slip op, 36, internal quotation marks omitted.)  Obviously, in 1868, the original public meaning of the word “liberty” would not have been so restricted.  But all original-public-meaning originalists accept, I believe, that original public meaning is not decisive when words appear in a phrase that is a term of art.  Because Dobbs does not examine the original public meaning of “liberty” in the context of the Due Process Clause or in any other context, we have the “no” part of the answer.

The “yes” part derives from the fact that, in Justice Scalia’s view, perhaps the most important, fundamental virtue of original-public-meaning originalism is that it tends to prevent judges, and especially Justices of the U.S. Supreme Court, from transforming their personal policy preferences into constitutional law.  The great danger Scalia identified in “the Living Constitution” is that the Court effectively amends the Constitution to reflect what a minimum of five Justices believe to be the best result, regardless of whether that result is consistent with the original public meaning of the relevant provision, and also regardless of whether that result negates laws enacted by democratically-elected legislators.  The methodology of the Living Constitution, in Scalia’s view, is inconsistent with both the Article V provisions for amending the Constitution, and with the respect the judicial branch should accord to laws enacted by democratically-elected legislators in the States and the Congress. 

We know, of course, that Scalia viewed both Roe and Casey as improper exercises of raw judicial power—cases in which Court majorities transformed personal policy preferences into constitutional law and, in so doing, negated the democratically-enacted statutes of dozens of States.  From an originalist perspective, then, Dobbs is a case which overrules the personal policy preferences of the Roe and Casey majorities and properly returns the regulation of abortion to the States, where it resided for almost two hundred years before Roe.  In that sense, and specifically because it gives effect to what originalists deem to be the fundamental virtue of originalism, Dobbs is an instance of originalism.    


The FBI Raid on Ex-President Trump
Andrew Hyman

The FBI raided the private home of a former president yesterday, for the first time in history. As Josh Blackman says over at the Volokh Conspiracy blog, “the optics here are stark: the chief law enforcement officer of the Biden administration is searching the home of the front-runner for the 2024 republican ticket.”  CNN reports
The FBI executed a search warrant Monday at Donald Trump's Mar-a-Lago resort in Palm Beach, Florida, as part of an investigation into the handling of presidential documents, including classified documents, that may have been brought there, three people familiar with the situation told CNN.
That’s the ostensible rationale, but how does it match up with the law and its original meaning?  There are apparently two sets of issues here: (1) the classification system for preserving state secrets, and (2) preservation of presidential records.  The latter seems more problematic for Trump than the former, because the classification system (including declassification) is run by executive order within the executive branch, whereas there is a federal statute about preserving presidential records. 
In my view, Trump could have informally or implicitly declassified anything he wanted while he was still president, even on his last day in office as he (voluntarily) walked out the door, and he could have limited that declassification to his own personal use of that information rather than anyone else’s use of it.  That’s how the system worked, and what the law was, for better or worse.  Law professor Steve Vladeck wrote in 2017 that Congress “has largely abdicated any authority or responsibility for national security classification.”  Vladeck was right, and there is no reason why Trump, while in office, had to follow Presidential Executive Order 13526, which had been issued by President Obama in 2009. On the other hand, Vladeck mentioned that the Federal Conversion Act does not turn on whether the information is classified or not.  But then we are moving to the subject of presidential documents rather than the classification system, because there is a specific statute addressing that subject: the Presidential Records Act (PRA), which was passed in 1978 and took effect in 1981, available at 44 U.S.C. §§ 2201–2209
According to the Congressional Research Service, “For most of the nation's history, presidential records were considered the private property of the President.” The PRA says (at 44 U.S. Code § 2202), “The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.”  That was a big change.  Interestingly, at the same time, Congress preserved private ownership of their own papers
Executive privilege also plays into all of this, arising under the separation of powers, and there was a lot of discussion about that in the recent 10th Circuit case of Trump v. Thompson.  Certainly, presidents before 1981 had more privilege over presidential documents as compared to later presidents who do not have any recognized property right in their own papers.  In that way, executive privilege was considerably whittled away in 1978 by the PRA.  If there is anything unconstitutional about that termination of property rights mandated by the PRA, it may be because Congress could have maintained a balance of power between the branches by subjecting its own papers to public ownership too, and not diminishing the internal management power of the executive branch only. 
Josh Blackman also mentioned an interesting statute, 18 U.S. Code § 2071 which says at part “b” that an official who destroys official documents “shall forfeit his office and be disqualified from holding any office under the United States.”  Since Trump is now out of office, he cannot forfeit his office so this quoted material is not applicable to him, it would seem.  Part “a” of that statute applies to people who are not officers, and it imposes no disqualification.  There’s no need to get into the issue of whether the president is an “officer under the United States” (I believe he is). Professor Matthew Franck wrote a good essay about this in 2015, titled No, a Statute Can't Keep Hillary from Being President.  At least, this statute can't.
MICHAEL RAMSEY ADDS:  On the last point, there are at least three separate issues: (1) whether Section 2071(b) applies to Trump as a former official; (2) whether Section 2071(b) applies to the presidency, or only to offices created by Congress; and (3) if it does apply to the presidency, whether it's constitutional.
On issue (2), Franck says it shouldn't be read to apply to the presidency, because a statute can't force the President to "forfeit his office" other than by impeachment and conviction.  That seems true, but also true of other officers of the United States (per Bowsher v. Synar, Congress cannot remove executive branch officials by statute).  So I'm not sure if the forfeiture part of the statute isn't just generally unconstitutional (although forfeiture-of-office statutes do have a history back to the founding era).
On issue (3), Franck says the disqualification part of the statute can't constitutionally apply to the President because the Constitution's presidential qualifications clause is exclusive: 
But a mere statute cannot legally disqualify a person from eligibility to the presidency, if he or she possesses the constitutional qualifications.  Anyone who is a native-born citizen, 35 or older, who has been 14 years a resident of the country, and who receives a majority of the electoral votes cast for president as certified by the joint session of Congress held to count the ballots (or in the event of no such majority, the one who wins a majority of the states in the contingency balloting of the House), shall be sworn in as president.  That is all in the Constitution, and it is not possible for Congress to add the further qualification “and who has not been convicted of felony X.”
As Josh Blackman notes, Seth Barrett Tillman reached a similar conclusion, also in the context of Hillary Clinton's candidacy: Secretary Clinton Can Relax Because Section 2071 Disqualification Does Not Apply to the Presidency.

Victoria Nourse: The Promise and Paradox of a Unified Judicial Philosophy
Michael Ramsey

Victoria Nourse (Georgetown University Law Center) has posted The Promise and Paradox of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020-2022 (51 pages) on SSRN.  Here is the abstract:

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile in the courts’ opinions. History appears in at least one opinion in a majority of cases and in a significant minority of unanimous cases, text is the end of the matter. However, there is also cause for worry. We found significant evidence of what Prof. Adrian Vermeule (2022) has called “disruption,” meaning that history and text are used to disrupt prior doctrines despite claims that originalism seeks stability and neutrality. Call this the “disruption” paradox. Similarly, we found that the self-described textualist Justices—presumably the best textualists in the world—do not agree upon the text most of the time. And when they disagree about text, they end up doing what they say that they should not do, engaging in policy reasoning. Call this the “consequentialist paradox.” The paper argues that proponents and critics of the court's new interpretive philosophy should seek to resolve these quandaries. [An 80 page appendix supporting these claims is posted separately]

This is a draft, do not cite without permission of the author.


Evan Bernick: Fourteenth Amendment Confrontation
Michael Ramsey

Evan D. Bernick (Northern Illinois University - College of Law) has posted Fourteenth Amendment Confrontation (65 pages) on SSRN.  Here is the abstract:

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent.

This is the first Asrticle to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850.

Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.


Giancarlo Canaparo & Thomas Jipping on William Treanor on Originalism and Precedent
Michael Ramsey

At Law & Liberty, Giancarlo Canaparo & Thomas Jipping (Heritage Foundation): Getting Originalism Wrong (critiquing this essay by William Treanor).  From the introduction:

William Treanor ... has an op-ed in Slate in which he claims that the Framers “believed that courts should defer to precedent” rather than the Constitution’s original public meaning. On this basis he criticizes the conservative justices as “flawed” originalists because they have the opposite priorities, willing to overrule precedents that depart from the Constitution’s original public meaning.

This theory allows him to complain about the Supreme Court overruling Roe v. Wade in Dobbs v. Jackson Women’s Health Organization and Lemon v. Kurtzman in Kennedy v. Bremerton School District on some basis other than the one which likely truly motivates him, which is that he likes the overruled precedents better than the overruling ones.

But Treanor’s position raises many questions, the first of which is: does he believe that precedent should never be overruled? If so, we would be stuck with cases like Plessy v. Ferguson (upholding separate but equal), Korematsu v. United States (upholding the internment of people of Japanese ancestry during WWII), or Pace v. Alabama (upholding anti-miscegenation laws)—all of which were precedents for longer than Roe.

Well, no. Treanor hedges and, pointing to Plessy specifically, says that “certainly some precedents of the court should be overturned.” Which brings us to the next obvious question: what rule does the dean propose to distinguish cases, like Plessy, that should be overruled from cases, like Roe, that should not?

This is, after all, the most important question. It’s surprising, therefore, that Dean Treanor has nothing to offer. No rule, no principle, no criteria, nothing. All he knows for sure is that a “decision to overturn precedent cannot be based on a jurisprudence of original meaning.”

Precedent is a challenge for any theory of constitutional interpretation, but I think this critique misunderstands Dean Treanor's claim.  His point is that if the framers believed precedent should never be overruled (or, I would say for an original meaning approach, if the original meaning of the judicial power is that courts lack power to overrule precedent), then originalist judges, uniquely, should not overrule precedent.

I think he's right, if his premise is right.  But I don't think his premise is right.  I don't think he's shown that founding-era courts lacked power to overrule precedents.  He has some generalized quotes from Madison and Hamilton that seem to me somewhat short of definite statements. My impression is that courts of the period actually did overrule precedents.  And in any event, as applied to Dobbs and other recent cases, the question for originalists is what to do about nonoriginalist precedent -- that is, precedent that (from an originalist perspective) itself exceeded the bounds of the judicial role.  Statements from the founders about the general value of precedent don't address that question. 



Erik Encarnacion: Text is Not Law
Michael Ramsey

Erik Encarnacion (University of Texas School of Law) has posted Text is Not Law (Iowa Law Review, Vol. 107, No. 5, 2022) (53 pages) on SSRN. Here is the abstract:

The Supreme Court’s landmark decision in Bostock v. Clayton County provides further fodder for debates about textualism, given the dueling opinions of Justices Gorsuch, Alito, and Kavanaugh, each of which purports to apply textualist reasoning correctly. But in a little-remarked-upon passage, Justice Gorsuch’s opinion casually conflates text and law, asserting, “[o]nly the words on the page constitute the law adopted by Congress and approved by the President.” In equating statutory text with law, Justice Gorsuch isn’t alone, following in the footsteps of other prominent textualists, including the late Justice Antonin Scalia and Judge Frank Easterbrook.

But text is not law—and cannot be. Conflating statutory text and law makes a category mistake. And not a harmless one. Nor is the conflation easily dismissed as an example of incautious rhetoric. The conflation fosters confusion about textualism and further muddles public understanding of appellate adjudication by propping up the myth that appellate judges should—and can—avoid making law. Conflating text and law also facilitates a type of literalist interpretation--indeed, opportunistic literalism--that defenders of textualism purport to reject.

Despite these problems, the casual conflation of text and law is likely here to stay, at least in part because it provides rhetorical advantages to textualist judges by allowing them to sidestep thorny controversies about linguistic meaning and the nature of law. This advantage suggests that textualist judges will continue to claim, falsely, that text is law.

Via Larry Solum at Legal Theory Blog, who has extensive critical comments, concluding: 

Originalism is the view that constitutional construction ought to be constrained by the communicative content of the constitutional text.  Statutory textualism is the view that statutory construction ought to be constrained by the communicative content of statutory texts.  Formulated in this way, neither originalism nor textualism rests on the claim that "text is law," and neither theory commits a category mistake.  This has all been clear since the early 2010s--although some originalists and textualists may be unaware of these issues or fail to appreciate their conceptual importance.

Read Encarnacion but take his article with a grain of salt when it comes to its claims about textualism and originalism.

Agreed. I don't think anyone actually thinks that text standing alone (meaning just the marks on the page) is or ought to be the law.