The Originalism Blog

Programming Note: Blog HolidayMichael Ramsey

I will be taking a short sabbatical-related break from the blog starting tomorrow.  I'll be back before the first Monday in October.

New Book: "Religious Liberty and the American Founding" by Vincent MuñozMichael Ramsey

Recently published, by Vincent Phillip Muñoz (Notre Dame): Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses -- Natural Rights and the Original Meanings of the First Amendment Religion Clauses (Univ. of Chicago Press 2022).  Here is the book description from the publisher:

An insightful rethinking of the meaning of the First Amendment’s protection of religious freedom.
 
The Founders understood religious liberty to be an inalienable natural right. Vincent Phillip Muñoz explains what this means for church-state constitutional law, uncovering what we can and cannot determine about the original meanings of the First Amendment’s Religion Clauses and constructing a natural rights jurisprudence of religious liberty.  

Drawing on early state constitutions, declarations of religious freedom, Founding-era debates, and the First Amendment’s drafting record, Muñoz demonstrates that adherence to the Founders’ political philosophy would lead neither to consistently conservative nor consistently liberal results. Rather, adopting the Founders’ understanding would lead to a minimalist church-state jurisprudence that, in most cases, would return authority from the judiciary to the American people. Thorough and convincing, Religious Liberty and the American Founding is key reading for those seeking to understand the Founders’ political philosophy of religious freedom and the First Amendment Religion Clauses.

Another Aspect of Interstate Commerce and AbortionDavid Weisberg

Prof. Michael Ramsey (here) and Mr. Andrew Hyman (here and here) have opined on this blog that the Commerce Clause would not authorize a nationwide ban on abortion (and Prof. Ramsey cites a number of other commentators who largely agree), while Prof. Michael Rappaport (here) thinks that, given the current understanding of the Clause (and regardless of whether current understanding conforms to original public meaning), such a ban could well be upheld.  I think Prof. Rappaport’s position is bolstered by the following fairly startling conclusion: If the Commerce Clause would not support a nationwide abortion ban, then it also cannot support significant portions of the Civil Rights Act of 1964.

Title VII of the 1964 Act makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin[.]”  The definition of “employer” is: “[A] person engaged in an industry affecting commerce who has fifteen or more employees[.]”  The term “industry affecting commerce” is defined, in relevant part, as follows: “[A]ny activity, business, or industry in commerce or in which a labor dispute would hinder or obstruct commerce or the free flow of commerce[.]”

Consider an employer that is a medical facility--a hospital or clinic--employing anywhere from fifteen to hundreds of individuals.  It would be ludicrous if that facility argued that, because it was not “engaged in an industry affecting commerce,” it was not subject to Title VII.  It would be equally ludicrous if it argued that, because it could prove that all the employees it had invidiously discriminated against were residents of the same State in which the employer/facility resided, it had engaged in merely intrastate discrimination which could not properly be regulated by Congress pursuant to the Commerce Clause.  Both those defenses would be flatly rejected. 

Now, suppose that among the services that same facility provides to patients are abortions.  I do not believe a single entity can logically be subject to regulation pursuant to the Commerce Clause for purposes of Title VII and not be subject to the Clause if Congress were to enact a nationwide ban on abortion.  If the entity's engagement in interstate commerce is sufficient to justify regulation under Title VII, then that same engagement would necessarily be sufficient to justify regulation under a hypothetical federal abortion ban.

Prof. Ramsey asserts: “The core problem with justifying a federal abortion ban under the power to regulate ‘commerce among the several States’ is that the ban’s ultimate goal has nothing to do with commerce among the states. Its target is a local medical practice that has long been the subject of state regulation.  Any claim that it’s about a matter of interstate commerce is just a pretext.”  He also writes: “Congress is banning local abortions simply to ban local abortions, not to further a regulation of interstate commerce of which local abortions are an inseparable part.” 

But the ultimate goal of Title VII’s ban on invidious discrimination includes banning invidious discrimination perpetrated by an employer who resides in the same State as the employees against whom he/she/it discriminates—that is, the ultimate goal of Title VII includes banning what could well be called “local discrimination.”  Congress could have enacted a version of Title VII that would have prohibited invidious employment discrimination only if the employee and employer resided in different States.  (Remember, even before the present era of telecommuting, hundreds of thousands of employees physically commuted every workday from, e.g., N.J. and Conn. into N.Y.C.)  Just as Congress decided that employment discrimination was a bad thing and should largely be eliminated nationwide (even including “local discrimination” that could be regulated by the States), so Congress could decide that abortions are a bad thing and should largely be eliminated nationwide (even including “local abortions” that could be regulated by the States).  Banning the local variety of what Congress decides is generally a bad thing is no more a “pretext” in one context than it is in the other.    

To be absolutely clear: I’m not advocating for a result.  I personally believe a federal ban on abortion would be lousy policy.  But I nevertheless contend that the view that Congress lacks the power to enact such a ban has implications that have not always been recognized and that many would consider unsettling.  

Michael McCue: Criminal Lawmaking Delegations from the Founding to TodayMichael Ramsey

Michael McCue (University of Chicago Law School, JD candidate '23) has posted Modern Times, Hidden Crimes: Criminal Lawmaking Delegations from the Founding to Today (Dartmouth Law Journal (forthcoming 2023)) (56 pages) on SSRN.  Here is the abstract:

Originalist proponents of the nondelegation doctrine often identify criminal lawmaking delegations as a unique area for concern. But despite this emphasis on the special nature of criminal delegations, no scholar has yet analyzed these “administrative crimes” from an originalist perspective. This Article continues the recent trend in scholarship reviewing the historical record for evidence of a nondelegation doctrine at the Founding. However, I adopt a unique approach in cabining this inquiry to the specific area of criminal law. While scholars may divide on the overarching nondelegation question, I argue that there exists evidence to support an originalist case against some types of criminal delegations.

I show that, while the Founders expressed negative views towards criminal delegations, there are multiple examples where they delegated discretion to the executive to determine the precise scope of criminal statutes. However, evidence shows that the Founders rejected other criminal delegations. I argue that this mixed historical record can be reconciled into a set of nondelegation principles. I also show that this original approach limiting criminal delegations was abandoned in the early 20th century. I demonstrate that applying these original principles to modern statutes would preserve some kinds of administrative crimes but hold others unconstitutional.

Is a Federal Law Restricting Abortion Constitutional?Mike Rappaport

Spurred on by Lindsey Graham’s proposed abortion legislation many law professors, including our very own Mike Ramsey, are writing that Congress does not have the constitutional authority to prohibit abortions (or presumably to protect the right to abortion).  I agree with Mike that the original meaning of Congress’s power under the Commerce Clause and the Necessary and Proper Clause does not authorize such legislation. 

The more difficult question is whether existing doctrine allows Congress to so legislate.  I am not so sure that I agree that Congress lacks the authority under existing doctrine.

I have not seen any of the commentators specifically address the most obvious way that such legislation might be defended.  Under Lopez, Morrison & Raich, Congress has the authority to pass laws that have a substantial effect on interstate commerce.  If the law regulates an economic activity, then small, individual effects on interstate commerce can be aggregated to produce a substantial effect.  If the law does not regulate an economic activity, the small, individual effects cannot be aggregated. 

Thus, a key question is whether providing an abortion is an economic activity.  Since abortions are provided for money – they are an economic transaction – one would assume that they are an economic activity. 

Are there small, individual effects on interstate commerce?  Based on the cases, which have a very lenient standard in this area, the answer would seem to be yes.  For example, if the law restricting abortion is not passed, then some people may travel from one state to another to get an abortion.  If the national law is passed, they will not so travel.  Moreover, if the law is passed, there are likely to be more people in the country, which has an economic effect.  And so on.  Thus, it would appear that the law is constitutional based on an aggregation of small effects that collectively represent a substantial effect on interstate commerce. 

Perhaps I am not applying the test correctly, but I would love to know what I am missing.

To be clear, there is another question that could be asked about Graham’s proposed legislation.  Would the current Supreme Court hold it to be constitutional?  It is possible that the current Court might hold the law unconstitutional but that does not mean the law is unconstitutional under current doctrine.  Rather, the Court might depart from current doctrine to strike down the law.  I think there is a real possibility that this could occur.  

Michael L. Smith: Abandoning Original MeaningMichael Ramsey

Michael L. Smith (University of Idaho College of Law) has posted Abandoning Original Meaning (Albany Law Review, Vol. 86, 2023 (forthcoming)) (58 pages) on SSRN.  Here is the abstract:

In the high profile, politically salient cases of New York State Rifle and Pistol Association, Inc. v. Bruen, Dobbs v. Jackson Women’s Health Organization, and Kennedy v. Bremerton School District, the Supreme Court had the opportunity to take an originalist approach to the Constitution and interpret it based on its original public meaning. The Supreme Court declined to do so. Instead, the Court began and ended its analysis with an investigation of history and tradition, with virtually no discussion of the Constitution’s meaning.

The Court’s opinions in Bruen, Dobbs, and Kennedy reveal a severe disconnect between originalist theory and judicial practice. Academic originalists frequently couch their theories in terms of what the Court has done or is expected to do. They present originalism to political and public audiences, claiming that particular Justices are originalists, predicting case outcomes, and critiquing judicial opinions based on their theory of originalism. Originalists must reckon with the fact that when it came time for the Court to issue its most crucial opinions, the Court not only refused to consider their work, but it refused to even consider the field of constitutional interpretation that they have spent decades developing.

This Article further addresses how critics of the Court may use the Court’s abandonment of original public meaning to amplify particular critiques of the Court and highlight the politicization of judicial decision making. These critics, however, should not attempt to argue against the Court on its own terms, as the ambiguous and undefined nature of the Court’s history and tradition approach gives the Court discretion to shape the rules of any dispute to favor the desired outcomes of the Court’s conservative majority.

(Via Larry Solum at Legal Theory Blog, who says: "There is much in this article with which I agree. Highly recommended.  Download it while it's hot!")

I agree that the Court's recent cases could have done more to focus on the text's original meaning.  But I think the article substantially overstates.  The Court is necessarily a practical institution that can't decide cases on a completely clean slate, and so it can't proceed in the same manner as academic originalism.  But the main cases of last term, at least, went mostly in an originalist direction.

(1) As to Dobbs, the Court took as its starting point the propositions that the due process clause is the source of substantive unenumerated rights and that (per Washington v. Glusckberg) the due process rights are only those supported by history and tradition.  Thus it had a somewhat nonoriginalist starting point that didn't rest on the text directly.  But I don't think that going all the way back to the text would have led to a different result; the short of it is that evidence of the existence of an abortion right at the time of the Fourteenth Amendment's enactment is very thin.  So Dobbs was, at least, on originalist-influenced decision. (See this discussion of Dobbs and originalism by Joel Alicea)  (2) As to Bruen, the Court did start with the Second Amendment's original meaning (though it finessed the question of whether it was the 1791 meaning or the 1868 meaning).  It concluded (rather quickly) that the right to "bear arms" meant the right the carry arms in public, subject to regulations that did not "infringe" that right; it then turned to history to evaluate what regulations were considered not infringing at the time of enactment. That seems like a plausible original meaning analysis. (See my discussion here.) (3) Finally, as to Kennedy, I think the Court's originalism was at its weakest: the Court assumed that the free exercise clause requires nondiscrimination as to religion in conditions of government employment, but it did not ask whether the original meaning of the text (precluding laws "prohibiting the free exercise [of religion]") directs that result.  As Will Foster argued on this blog, it's not at all obvious that the text had this meaning.

Even with these reservations, the last term was probably the best term for originalism at the modern Court since, well, ever.

 

A Comment on Federal Abortion BansAndrew Hyman

I agree with co-blogger Michael Ramsey (here) that the Commerce Clause does not empower Congress to regulate abortion, as I previously discussed on this blog here.  But Congress does have power under the Equal Protection Clause and Section 5 of the Fourteenth Amendment to enforce a ban on abortion provided we’re talking about post-viability.  Even if a human being is a “person” pre-viability, that human being is not similarly situated to any born person.  In contrast, post-viability, there are born people at the same exact stage of development. Moreover, birth could be induced at any time post-viability, so the only slight difference between the born child and the viable unborn child is location, and so a state should protect them equally.

Cass Sunstein: ThayerismMichael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School) has posted Thayerism (16 pages) on SSRN.  Here is the abstract:

In the late nineteenth century, James Bradley Thayer urged that an act of Congress should not be struck down unless the constitutional violation “is so clear as to leave no room for reasonable doubt.” Thayer’s beyond-a-reasonable-doubt test helped define constitutional understandings for more than a half-century; Oliver Wendell Holmes, Louis Brandeis, Learned Hand, Benjamin Cardozo, and Felix Frankfurter were practicing Thayerians. Thayerism provided crucial orientation for Alexander Bickel’s conception of judicial review and his embrace of “the passive virtues,” and also for John Hart Ely’s democracy-reinforcing approach to constitutional law. But Thayerism seems to have dropped out of contemporary constitutional law. One reason is that as a matter of simple psychology, it is extremely difficult for any judge consistently to embrace it. Another reason is that Thayer’s defense of Thayerism was very thin; for the most part, he purported to be describing longstanding practice, rather than to be justifying it. But if we make certain judgments about the likely capacities and performance of judges, legislators, and others, Thayerism would make a great deal of sense. If we make contrary judgments, Thayerism would be preposterous. Selective Thayerism, of the sort defended by Bickel or Ely, might follow from yet another set of judgments. The broader lesson is that no approach to constitutional law can be adopted or rejected in the absence of an answer to the question whether it would make our constitutional order better rather than worse, which requires in turn a set of judgments about the likely behavior of various institutions. We might also understand Thayerism as a kind of arms control agreement: I will adopt a Thayerian approach if you will as well. More particularly, left-of-center judges might be willing to be Thayerian if and only if right-of-center judges are willing to be Thayerian as well. The problem, of course, is that unless a strong norm is in place, both sides will be tempted to defect. And that is, in fact, what we observe.

There’s No Federal Power to Ban Abortion [Updated]Michael Ramsey

As has been widely reported, Senator Lindsey Graham introduced a bill providing a federal ban on abortions more than 15 weeks after pregnancy, subject to some exceptions.  (Howard Wasserman comments at PrawfsBlawg here.) In my view that bill is unconstitutional as beyond Congress’ legislative power – certainly as a matter of the Constitution’s original meaning, and even under modern arguably non-originalist precedents.

Senator Graham reportedly finds power from Congress’ authority over interstate commerce and from Congress’ power to enforce the Fourteenth Amendment, specifically the equal protection clause.  I’ll focus here on the commerce clause argument; the Fourteenth Amendment argument requires one to believe the a fetus is a person for constitutional purposes, which would make state laws allowing abortion likely unconstitutional even without federal legislation – a position I think few people (and very few judges) would endorse.

Congress has Article I, Section 8 power to “regulate Commerce … among the several States.”   A transaction between an abortion provider in a state and a resident of that state may be commerce but there is no sense in which it is a transaction "among the several States." The text's inclusion of the restriction “among the several States” in the description of Congress’ commerce power shows that the commerce power doesn’t extend to all commerce and that local commerce (commerce not among the several states) is excluded.  As Chief Justice Marshall put it in Gibbons v. Ogden (1824):

The subject to which the power is applied, is commerce "among the several States".  The word "among" means intermingled with. A thing which is among others is intermingled with them.  ...

It is not intended to say that these words comprehend that commerce, which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other states.  Such a power would be inconvenient, and is certainly unnecessary.

Comprehensive as the word "among" is, it may properly be restricted to that commerce which concerns more States than one.  The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce, to which the power would to be extended, would not have been made, had the intention been to extend the power to every description.  The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentences, must be the purely internal commerce of a State.

Congress also has power to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [i.e., those previously listed in Article I, Section 8].”  Thus Congress has power to make laws necessary and proper to carry into execution its power to regulate commerce among the several states.  On this basis, the modern Supreme Court has approved some laws reaching activities taking place only within a state – most famously growing wheat for personal consumption (Wickard v. Filburn) and possessing marijuana for personal consumption (Gonzales v. Raich).

I think these cases were likely decided incorrectly as matter of original meaning, largely for the reasons stated in Justice O’Connor’s dissent (joined by Justice Thomas) in Raich.  But even if they weren’t, they are easily distinguishable from a federal abortion ban. Wickard and Raich both involved federal regulations of interstate commerce clearly within Congress’ Section 8 power: in Wickard, controlling prices in the interstate wheat market, and in Raich the prohibition of the interstate sale of marijuana. According to the Court, in each case Congress’ regulation of local production and use was “necessary” (perhaps not strictly necessary, but at least useful) to further Congress’ regulation of the interstate market, because the local transactions were not readily separable from interstate transactions.  In the abortion ban situation, there is nothing comparable.  Congress is banning local abortions simply to ban local abortions, not to further a regulation of interstate commerce of which local abortions are an inseparable part.

It’s true that Congress’ interstate commerce power may allow Congress to ban interstate travel for purposes of obtaining an abortion.  But the existence of local abortion providers would not undermine such a regulation, because local providers could easily require proof of residency (and the law could require them to).  In any event, the Graham bill does not justify itself in this way.

Congress might also try to justify the Graham bill on the grounds that local abortion services within a state have a “substantial effect” on the national economy.  Although the Court has used the “substantial effect” phrase in cases like Wickard and Raich, it has not allowed mere speculation about remote effects on the national economy to justify regulation of local matters.  In U.S. v. Lopez, for example, the Court (with Justices Scalia and Thomas in the majority) rejected speculation about remote effects on the national economy as a justification for federal regulation of guns near schools.  Any claim about how local abortions affect the national market would be very similar to (and as remote as) the failed justification in Lopez.  And Lopez was surely right on this point as a matter of original meaning, again for the reasons stated by Marshall in Gibbons: “The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentences, must be the purely internal commerce of a State.”  Accepting the justification proffered in Lopez would erase the distinction between local and national.

Another possible justification is that, to the extent the abortion providers use materials that have been sold in interstate commerce, the providers are subject to federal regulation. Some lower courts have accepted a similar justification in analogous cases, and the Supreme Court suggested it in Katzenbach v. McClung (involving federal regulation of the local activities of a restaurant that purchased meat in interstate commerce). But such a regulation isn’t really a regulation of commerce among the states; it’s a regulation of activity within a state, with only a tenuous connection to interstate activities that does not make its regulation necessary and proper to any enumerated federal power.  As in Lopez, accepting this argument would erase the distinction between local and national.  (McClung is better defended as resting on its primary rationale that, as in Wickard and Raich, the regulation of the local activity was necessary to a broader federal regulation of interstate activity.)

These justifications of broad federal power might be more plausible if they were supported by history of early post-ratification federal regulation that were justified on these grounds. That’s especially true given the Court’s recent emphasis on history and tradition as indicators of original meaning.  But I’m not aware of any early federal law justified on either ground (that is, that a local activity might have a remote speculative effect on the national economy or that an object used in a local activity once moved in interstate commerce).  Thus, if there's any ambiguity as to the original meaning here (which I doubt), history and tradition indicate that the potential justifications for the federal ban are insufficient.

The core problem with justifying a federal abortion ban under the power to regulate "commerce among the several States" is that the ban's ultimate goal has nothing to do with commerce among the states. Its target is a local medical practice that has long been the subject of state regulation.  Any claim that it’s about a matter of interstate commerce is just a pretext.  It is not a measure to carry into execution a regulation of interstate commerce: unlike in Wickard and Raich, its motivation is only to claim federal power over activity wholly within a state.  As Chief Justice Marshall also said (in McCulloch v. Maryland), Congress has considerable leeway in deciding how to implement its goals as long as its goals are legitimate (i.e., within Congress’ constitutional power). But, he continued:

[S]hould Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Go.vernment, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

That is the case of the federal abortion ban: Congress would be “pass[ing] laws for the accomplishment of objects [i.e., regulation of local abortion services] not intrusted to the [federal] Government.”

RELATED:  A Wall Street Journal editorial adds:  "If Republicans care about originalism, and many of them do, then it’s a mistake to start arguing that abortion regulations qualify as 'commerce.'"  Agreed (though I think they meant to say "regulations of interstate commerce").

ALSO RELATED:  From long ago but still on point, Glenn Reynolds and David Kopel: Taking Federalism Seriously: Lopez and the Partial-Birth Abortion Ban.

UPDATE:  Glenn Reynolds in the New York Post: Sorry, Lindsey Graham: Congress doesn’t have the power to legislate on abortion.

FURTHER UPDATE:  John Yoo agrees in the Washington Post, though without much originalist analysis: Schumer and Graham are both wrong on abortion: Congress can’t legislate it (relying mostly on the modern Supreme Court's Lopez and Morrison opinions).  At Volokh Conspiracy, Ilya Somin agrees on the originalist analysis but is less sure on the modern doctrine:  Lindsey Graham's Proposed Federal Abortion Ban is an Unconstitutional Assault on Federalism - But it Might Fly Under Current Supreme Court Precedent.

Professor Somin sees Gonzales v. Raich as the main precedent that would be invoked in support of a ban.  He's right that there is some unfortunately broad language in Raich.  But I think the Raich holding is distinguishable for the reasons described in my initial post, and I doubt there are five votes on the current Court for an expansion of Raich in a direction clearly unsupported by the Constitution's original meaning.

Marc DeGirolami Blogging about his Article "Traditionalism Rising"Michael Ramsey

At Volokh Conspiracy, Marc DeGirolami (St. John's) has a series of guest posts on his forthcoming article Traditionalism Rising (noted here).

Traditionalism Rising, Part I: Defining Traditionalism and Locating It in the Court's 2021 Term

Traditionalism Rising, Part II: Comparing (Liquidated) Originalism and Traditionalism

Traditionalism Rising, Part III: The "Level of Generality" Problem

Traditionalism Rising, Part IV: The Problem of Justification

Traditionalism Rising, Part V: The Problem of Politics

Here is the introduction from the first post:

Eugene [Volokh] has graciously invited me to write a few posts about my new article, Traditionalism Rising (forthcoming in the Journal of Contemporary Legal Studies and part of a symposium this fall at the University of San Diego School of Law). The piece builds on and extends a larger project about constitutional traditionalism developed in earlier papers (here and here), as well as in a broader research program, The Tradition Project, that my colleague (and Volokh co-conspirator) Mark Movsesian and I have pursued over several years at our Center for Law and Religion. I've been a dedicated reader of the Volokh Conspiracy since I was a law prof pup, so it is a pleasure for me to contribute something.

My posts will: (1) define traditionalism and locate it in the Supreme Court's work this past term; (2) compare traditionalism and originalism, particularly what the paper calls "liquidated originalism"; (3) address traditionalism's "level of generality" problem, the problem how to select the operative tradition; (4) offer several justifications for traditionalism; (5) consider the problem of traditionalism's politics. Most of the material is excerpted or summarized from the article, but I invite readers to look at the piece for the full-dress argument. I welcome reactions to the paper, which is still a draft.