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28 posts from November 2022


Saul Cornell on Originalism's Historical Challenges
Michael Ramsey

At the Ohio State University site Origins: Current Events in Historical Perspective, Saul Cornell (Fordham): Originalism’s Historical Problems: The Supreme Court’s Embrace of a Controversial Theory.  Some excerpts:

[I]nterpreting a constitution is different from what historians do when they make sense of other old legal documents, such as wills, contracts, or statutes. Nor can one simply run the text of the Constitution through something like a Google translator function: a fact most originalists have failed to grasp. 

Words, particularly the words of a constitution, are embedded in a rich range of contexts when they are uttered. Recovering their original meaning requires restoring not just the text but paying close attention to the contexts in which those words would have been interpreted.

In contrast to those other more familiar legal texts, the U.S. Constitution was the product of a collective effort, so discerning a single intent as a guide to its meaning is hard to do, if not impossible. Additionally, from the moment it was adopted, there were bitter disagreements over what type of text the Constitution was and how it ought to be interpreted. 

The Constitution was a new type of document with no clear precedents or agreed-upon methods for interpreting its meaning. Was the Constitution like a Parliamentary statute, or more like a contract between the people and their government? The former uses one set of legal principles and the latter a different set of tools.

Within months of its adoption, former Anti-Federalists—opponents of the unamended Constitution—and Federalists were already arguing bitterly over what the text meant. Alexander Hamilton and James Madison, two of the co-authors of The Federalist, the contemporary commentary on the Constitution they published, disagreed over almost every major constitutional question that emerged during the turbulent decade after ratification. If people at the time could not agree on a single meaning of the text, it seems unlikely that judges in the 21st century can find one.  

Other originalists have argued that the Constitution should be read like a recipe that needs to be followed precisely as one would in cooking a meal. Originalists, however, don’t appear to have spent much time in the kitchen. Real cooks seldom follow recipes strictly and any cook worth their salt would adjust a recipe on the fly to deal with the actual situation they faced in the kitchen. If you opted for a tough cut of meat, such as brisket, you would certainly opt to cook the stew a bit longer. Speaking of salt, most recipes typically end with the advice “season to taste,” so different cooks are likely to interpret that advice in light of their own experiences in the kitchen and distinct culinary traditions.

If the entire Constitution contained precise instructions, the recipe analogy might work better. But most parts of the text are not precise at all. Much of the document was deliberately crafted with open-ended language, both to allow the government to address unprecedented challenges and because compromise during the drafting of the document meant using ambiguity and vagueness in a strategic fashion, kicking many practical questions down the road to later generations. ...

It's a good survey of challenges to originalism from a historical perspective.  Originalists need to have responses to these and related points (but I think responses are available).


Tara Grove: The Misunderstood History of Textualism
Michael Ramsey

Tara Leigh Grove (University of Texas School of Law) has posted The Misunderstood History of Textualism (forthcoming, Northwestern University Law Review, Vol. 117, No. 4, 2023) (65 pages) on SSRN.  Here is the abstract:

This Article challenges widespread assumptions about the history of textualism. Jurists and scholars have sought for decades to distinguish “modern textualism” from the so-called “plain meaning school” of the late nineteenth and early twentieth centuries—an approach that both textualists and non-textualists alike have long viewed as improperly “literal” and “wooden.” This Article shows that this conventional historical account is incorrect. Based on a study of statutory cases from 1789 to 1945 that use the term “plain meaning” or similar terms, this Article reveals that, under the actual plain meaning approach, the Supreme Court did not ignore context but looked to surrounding text and structure to determine if an operative text was clear. The Article also offers an intellectual history, showing how in the early twentieth century, legal realists and legal process theorists created the myth of a “literal” and “wooden” “plain meaning school.” More surprisingly, modern textualists later accepted this account—a decision that, this Article suggests, had an important impact on the development of textualism. To distinguish their brand from (what they saw as) the “literal” old plain meaning school, modern textualists defined “textualism” so capaciously as to create the conditions for divisions within textualism that we see today. This Article not only clears up a historical misunderstanding but also has two broader lessons. First, the account here offers a cautionary tale about reliance on “conventional wisdom.” Second, the analysis suggests that theorists should set aside debates over “literalism” in statutory interpretation. The question is not—and has never been—whether interpreters should look to context but rather which context they should consider.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week.")


New Book: "Democracy’s Chief Executive" by Peter Shane
Michael Ramsey

Recently published, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency, by Peter M. Shane (University of California Press 2022).  Here is the book description from Amazon:

Legal scholar Peter M. Shane confronts U.S. presidential entitlement and offers a more reasonable way of conceptualizing our constitutional presidency in the twenty-first century.
In the eyes of modern-day presidentialists, the United States Constitution’s vesting of “executive power” means today what it meant in 1787. For them, what it meant in 1787 was the creation of a largely unilateral presidency, and in their view, a unilateral presidency still best serves our national interest. Democracy’s Chief Executive challenges each of these premises, while showing how their influence on constitutional interpretation for more than forty years has set the stage for a presidency ripe for authoritarianism.
Democracy’s Chief Executive explains how dogmatic ideas about expansive executive authority can create within the government a psychology of presidential entitlement that threatens American democracy and the rule of law. Tracing today’s aggressive presidentialism to a steady consolidation of White House power aided primarily by right-wing lawyers and judges since 1981, Peter M. Shane argues that this is a dangerously authoritarian form of constitutional interpretation that is not even well supported by an originalist perspective. Offering instead a fresh approach to balancing presidential powers, Shane develops an interpretative model of adaptive constitutionalism, rooted in the values of deliberative democracy. Democracy’s Chief Executive demonstrates that justifying outcomes explicitly based on core democratic values is more, not less, constraining for judicial decision making—and presents a model that Americans across the political spectrum should embrace.

The Yale Journal on Regulation's Notice and Comment Blog is hosting a symposium on the book, with these contributions, some sharply critical of originalism:

Reining in the Presidency Requires Limiting the Scope of Federal Power, by Ilya Somin

The Necessity of Politics in Administration, by Cristina Rodriguez

Constitutional Interpretation Is Values All the Way Down, by Michael Sant’Ambrogio

Of Presidents, Democracy, and Congress, by Gillian Metzger

Democracy’s Chief Executive and the Separation of Powers, by Christopher J. Walker

The Major Question Doctrine, Nondelegation, and Presidential Power, by Daniel Farber

Visions of a Progressive Regulatory Movement: Remarks on Democracy’s Chief Executive by Peter M. Shane, by Glen Staszewski

Resisting Originalism, Even When “Done Well”, by Lisa Heinzerling

What Kind of Democracy? by Keith E. Whittington

Can Originalism Survive the Lawlessness It Has Bred? A Prayer for a Stronger and Wiser Theory of Interpretation, by Victoria Nourse

The Bloated and Dangerous Presidency, by Carlos A. Ball

The Time to Stop a Runaway Presidency is Before it Starts, by Richard H. Pildes


Tom Donnelly: Popular Constitutional Argument
Michael Ramsey

Thomas Donnelly (Ph.D. candidate, Princeton - Politics) has posted Popular Constitutional Argument (Vanderbilt Law Review, Vol. 73, No. 73, 2020) (78 pages) on SSRN.  Here is the abstract:

Critics have long attacked popular constitutionalists for offering few clues for how their theory might work in practice—especially inside the courts. These critics are right. Popular constitutionalism—as a matter of both theory and practice—remains a work in progress. In this Article, I take up the challenge of developing an account of (what I call) popular constitutional argument. Briefly stated, popular constitutional argument is a form of argument that draws on the American people’s considered judgments as a source of constitutional authority—akin to traditional sources like text, history, structure, and doctrine. Turning to constitutional theory, I situate popular constitutional argument within contemporary debates over judicial restraint, living constitutionalism, popular sovereignty theory, and originalism. And turning to constitutional practice, I offer the interpreter a concrete framework for crafting popular constitutional arguments—cataloguing the various indicators of public opinion that have played a role in recent Supreme Court decisions. These indicators include measures associated with the President, Congress, state and local governments, the American people’s actions and traditions, and public opinion polls. Throughout, I use illustrative examples to show the various ways in which popular constitutional argument already operates at the Supreme Court—appealing to jurists from across the ideological spectrum. While this Article begins to explore how popular constitutionalism might operate inside the courts, much work remains.

From a little while back, but I missed it the first time and it seems very interesting.  At Legal Theory Blog,. Larry Solum says: "Finally!  Much needed.  Highly recommended.  Download it while it's hot!"


More on Lessig on the Slaughterhouse Case
Earl Maltz

[Ed.: This is the third in a series of point-counterpoints by Professors Earl Maltz and Lawrence Lessig regarding Provessor Lessig's recent essay on the Slaughterhouse Case.  Previous posts are here (Maltz) and here (Lessig).]

First, I’d like to thank Professor Lessig for continuing the conversation and for calling my attention to a point that I should have addressed in my first post.

At its core, Lessig’s argument is based on his interpretation of Justice Miller’s observation in the Slaughterhouse Case that the “privileges or immunities of citizens of the United States are those which owe their existence to the Federal government, its national character, its Constitution, or its laws.” Lessig suggests that the reference to “its laws” might be read to indicate that the Privileges or Immunities Clause vested Congress with the power “to render a ‘privilege or immunity’ federal if, and maybe only if, it is addressing some denial of equality.”  He argues that a contrary interpretation of Miller’s opinion is not appropriate because such an interpretation would call into question the constitutionality of the Civil Rights Act of 1866, which had been reenacted in 1870 after the ratification of the Fourteenth Amendment itself.

One of the problems with this argument is that it ignores the context in which the reference to “its laws” was made.  There is no reason to believe that Miller was suggesting that, even when combined with section five, the Privileges or Immunities Clause should be interpreted in a manner that would allow Congress to override state laws dealing with a wide variety of rights so long as there was “some denial of equality.”  Instead, Miller was simply making the commonplace observation that, assuming that Congress had the authority to pass a particular statute, any rights granted by that statute would be derived from the federal government rather than the states and that, as such, were among the privileges or immunities that one enjoys by virtue of his or her national citizenship.

More importantly, while Miller was clearly well-aware of the need to interpret the Fourteenth Amendment in a manner that would unequivocally vindicate the constitutionality of the Civil Rights Act, he did not rely on the Privileges or Immunities Clause as the source of congressional authority to pass the statute.  Instead, Miller would have derived the relevant authority from the Equal Protection Clause.  Thus, after quoting the language of that clause, he asserted that “the existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden” and that “if, however, the States did not conform their laws to its requirements, then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation.”  However, Miller was also careful to limit the scope of his equal protection argument, observing that “we doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.”

By relying on the strictures of the Equal Protection Clause as the justification for the Civil Rights Act while simultaneously emphasizing the limitations on the scope of that authority, Miller was able to vindicate congressional power to protect the former slaves from hostile state action while at the same time avoiding the dramatic change in the structure of federal-state relations that he condemned immediately after his discussion of the equal protection issue.  By contrast, the recognition of a general power in Congress to protect rights in any case where there is “some denial of equality” would have created the very kind of change in the federal system that Miller described in such derogatory terms.  In short, unless one is willing to dismiss Miller’s discussions of the importance of federalism as mere window dressing, Lessig’s characterization of the import of the reference to “its laws” in the majority opinion in Slaughterhouse is simply implausible.


Julian Gregorio: Picking an Originalist Approach that Gets Standing Back on Track
Michael Ramsey

Julian Gregorio (Notre Dame, J.D. Candidate '23) has posted What's Originalism After TransUnion?: Picking an Originalist Approach that Gets Standing Back on Track (Notre Dame Law Review Reflection, forthcoming) (27 pages) on SSRN.  Here is the abstract:

The law of standing has “jumped the tracks” from the Constitution’s original meaning. At least, a growing chorus of originalists say so. Justice Thomas, as well as Judge Kevin Newsom of the Eleventh Circuit Court of Appeals, are leading the way to put the doctrine back on track. Justice Thomas’s 2021 dissent in TransUnion LLC v. Ramirez, as well as Judge Newsom’s 56-page concurrence in Sierra v. City of Hallandale Beach, each display the originalist approach to standing—but do they agree? Judge Newsom’s approach largely mirrors Justice Thomas’s, but it differs in subtle ways, including that he would ground statutory grants of standing in Article II rather than in Article III, as Justice Thomas apparently does. The two judges agree that constitutional “concrete injury” does not always require injury in fact, if Congress elevates a harm by statute.

This Note explores the differences between the two originalist attempts to realign the law of standing with the Constitution’s original meaning. The issue has important implications for the originalist methodology more broadly, as it will aim to elucidate what makes originalists arrive at similar conclusions from different starting points or arrive at different conclusions entirely. Hopefully, the Note will help those sympathetic to the cause understand the law of standing and how to best get standing jurisprudence back on track. And hopefully, the Note will help those unsympathetic to the cause by at least elucidating what these two major originalists are doing. Either party would do well to understand this debate: any changes that are to come in the law of standing will have significant practical effects.


Even More from Gregory Ablavsky on Rob Natelson on the Indian Commerce Clause
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs (11 pages) on SSRN.  Here is the abstract:

This short piece builds on my earlier response to Robert Natelson's purported "cite check" of my 2015 Yale Law Journal article by addressing some of the arguments in his new Federalist Society Review article. It argues 1) that Natelson misinterprets Federalist 42, 2) that colonial-era regulations of Indian trade support a quite broad scope for the law merchant, and 3) that Natelson mischaracterized my methodology while making some odd methodological choices of his own.

It also briefly offers some new evidence on the historical scope of federal authority in Indian affairs that further supports an interpretation of the meaning of "commerce with the Indian tribes" that encompasses intercourse.

Links to earlier rounds in this interesting but heated exchange are here.

(Via Karen Tani at Legal History Blog).


Justice Gorsuch Calls for More Overrulings on Originalist Grounds
Michael Ramsey

In two recent dissents from denial of certiorari, Justice Gorsuch called on the Court to overrule prior decisions.  In Khorrami v. Arizona he argued for overturning Williams v. Florida, 399 U. S. 78 (1970) (holding that the Sixth Amendment allows a jury of fewer than 12 members.  From the opinion: 

The State of Arizona convicted Ramin Khorrami of serious crimes before an 8-member jury. On appeal, Mr. Khorrami sought a new trial, arguing that the Sixth and Fourteenth Amendments of the U. S. Constitution guarantee individuals like him a trial before 12 members of the community. The Arizona Supreme Court rejected the appeal, explaining that it considered itself bound by Williams v. Florida, 399 U. S. 78 (1970). There, for the first time and in defiance of centuries of precedent, this Court held that a 12-member panel "is not a necessary ingredient" of the Sixth Amendment right to trial by jury. In his petition for certiorari, Mr. Khorrami asks us to reconsider Williams. Regrettably, the Court today declines to take up that task. Williams was wrong the day it was decided, it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation's courts….

For almost all of this Nation's history and centuries before that, the right to trial by jury  for serious criminal offenses meant the right to a trial before 12 members of the community. In 1970, this Court abandoned that ancient promise and enshrined in its place bad social science parading as law. That mistake continues to undermine the integrity of the Nation's judicial proceedings and deny the American people a liberty their predecessors long and justly considered inviolable. Today's case presented us with an opportunity to correct the error and admit what we know the law is and has always been. Respectfully, we should have done just that.

And of greater significance, were he to get the votes, in Buffington v. McDonough Justice Gorsuch argued for overruling the doctrine of agency deference associated with Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). From the opinion: 

From the beginning of the Republic, the American people have rightly expected our courts to resolve disputes about their rights and duties under law without fear or favor to any party—the Executive Branch included. See A. Bamzai, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L. J. 908, 987 (2017). In this country, it was “well established” early on that courts are not “bound by . . . administrative construction[s]” of the law and those constructions may “be taken into account only to the extent that [they are] supported by valid reasons.” Burnet v. Chicago Portrait Co., 285 U. S. 1, 16 (1932).


In this country, we like to boast that persons who come to court are entitled to have independent judges, not politically motivated actors, resolve their rights and duties under law. Here, we promise, individuals may appeal to neutral
magistrates to resolve their disputes about “what the law is.” Marbury v. Madison, 1 Cranch 137, 177 (1803). Everyone, we say, is entitled to a judicial decision “without respect to persons,” 28 U. S. C. §453, and a “fair trial in a fair
tribunal,” In re Murchison, 349 U. S. 133, 136 (1955). Under a broad reading of Chevron, however, courts often
fail to deliver on all these promises. Rather than provide individuals with the best understanding of their rights and
duties under law a neutral magistrate can muster, we outsource our interpretive responsibilities. Rather than say
what the law is, we tell those who come before us to go ask a bureaucrat. In the process, we introduce into judicial proceedings a “systematic bias toward one of the parties.” P. Hamburger, Chevron Bias, 84 Geo. Wash. L. Rev. 1187,
1212 (2016). Nor do we exhibit bias in favor of just any party. We place a finger on the scales of justice in favor of
the most powerful of litigants, the federal government, and against everyone else. In these ways, a maximalist account
of Chevron risks turning Marbury on its head.

(At Volokh Conspiracy, Josh Blackman comments on the latter dissent).

Seth Barrett Tillman Receives Award from the North Carolina Society of Historians
Michael Ramsey

Congratulations to Seth Barrett Tillman, whose work is often featured on this blog, for receiving the North Carolina Society of Historians' 2021 Award of Excellence for Outstanding Contribution to the Preservation and Perpetuation of North Carolina History and Heritage.  The award is based on his articles "What Oath (if any) did Jacob Henry take in 1809?: Deconstructing the Historical Myths," 61(4) American Journal of Legal History 349–384 (Dec. 2021) (available here) and "A Religious Test in America?: The 1809 Motion to Vacate Jacob Henry’s North Carolina State Legislative Seat—A Re-Evaluation of the Primary Sources," 98(1) North Carolina Historical Review 1–41 (Jan. 2021)  (available here).

Professor Tillman's thoughts on receiving the award are here (at New Reform Club).


David Gans on Originalism and Moore v. Harper
Michael Ramsey

At Slate, David Gans (Constitutional Accountability Center): Originalism Demands Only One Answer in the Supreme Court’s Big Elections Case.  From the introduction:

Moore v. Harper, which will be argued before the Supreme Court on Dec. 7, has been called one of the most important democracy cases ever to come before the court. It is also a defining moment for the many justices on the court who profess to be originalists. Moore raises the question of whether the court’s conservative wing will sanction an anti-originalist power grab that would eviscerate our ability to hold free and fair elections.

Moore involves the so-called independent state legislature theory—a sweeping and radical effort to prevent state courts from protecting voting rights enshrined in their own state constitutions. In Moore, the North Carolina Supreme Court held that North Carolina’s congressional maps contained a partisan gerrymander that violated the free elections clause of the North Carolina Constitution, a provision that has been a fixture of that document since 1776. The North Carolina legislature, however, insists that because the U.S. Constitution gives state legislatures the authority to regulate the time, place, and manner of congressional elections, all substantive state constitutional checks and balances are null and void. This is an astounding—and astoundingly wrong—claim that would annul state constitutional voting and equality protections added to state charters over the course of two centuries, do violence to principles of federalism, and throw state electoral systems into disarray.

Further, the ISLT is an abomination to originalism, and for genuinely originalist justices, Moore should be an easy case. First of all, American constitutionalism began with state constitutions. Judicial review by state courts to enforce state constitutional limits on the power of the legislature is older than the U.S. Constitution itself. Well before the delegates met in Philadelphia to draft the Constitution, state courts put into practice the notion that legislatures are creatures of state constitutions and bound to observe their limits, not independent of them. In fact, state judicial review provided the model for federal judicial review. As Alexander Hamilton’s classic defense of judicial review made explicit, “the right of the courts to pronounce legislative acts void, because [they are] contrary to the Constitution” has been “of great importance in all the American constitutions.” ...

I think this is basically right, and I doubt the Court will accept the absolute version of ISLT advocated by the state legislature.  But the essay here fails to engage with two intermediate positions.  First, it acknowledges Justice Alito's comment at an earlier stage of the litigation that "'there must be some limit on the authority of state courts to countermand actions taken by state legislatures when they are prescribing rules for the conduct of federal elections.' The state court’s ruling, Alito argued, wasn’t a genuine act of constitutional interpretation, but had all the 'hallmarks of legislation.'"  But the essay doesn't explain why this position is wrong.  Second, the essay mentions the Atlantic essay by William Baude and Michael McConnell, noted on this blog, but does not discuss the intermediate position they advocate.  Either of these intermediate views would result in the state prevailing in Moore, without the Court embracing the absolutist version of ISLT.

UPDATE/RELATED: Rosemarie Zagarri (George Mason University-History Dept.) has posted The Historian's Case Against the Independent State Legislature Theory (Boston College Law Review, March 2023 (forthcoming)) (31 pages) on SSRN.  Here is the abstract:

This Essay explores historical evidence from the Founding Era underlying Art. 1, Sec. 4 of the US Constitution (and related clauses) that delegate certain powers to state legislatures in making federal election laws. The article shows that far from empowering the state legislatures, the US Constitution was meant to curb state legislative supremacy and confirm the subordination of state legislatures to the checks and balances embedded in the individual state constitutions. It shows that the Independent State Legislature Theory is contrary to both the theory of constitutional government and the practices of state legislatures in making federal election laws.