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23 posts from January 2023


Programming Note: Further Blog Holiday
Michael Ramsey

I will be taking another sabbatical-related blog holiday this coming week.  Don't let anything happen while I'm gone.


Anthony Bellia & Bradford Clark: The Constitutional Law of Interpretation
Michael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) & Bradford R. Clark (George Washington University Law School) have posted The Constitutional Law of Interpretation (Notre Dame Law Review, Vol. 98, No. 519, 2022) (100 pages) on SSRN.  Here is the abstract:

The current debate over constitutional interpretation often proceeds on the assumption that the Constitution does not provide rules for its own interpretation. Accordingly, several scholars have attempted to identify applicable rules by consulting external sources that governed analogous legal texts (such as statutes, treaties, contracts, etc.). The distinctive function of the Constitution—often forgotten or overlooked—renders these analogies largely unnecessary. The Constitution was an instrument used by the people of the several States to transfer a fixed set of sovereign rights and powers from one group of sovereigns (the States) to another sovereign (the federal government), while maintaining the “States” as separate sovereigns with residual authority. Thus, constitutional interpretation necessarily entails ascertaining the extent to which the Constitution transferred sovereign rights from the States to the newly created federal government. The law of nations prescribed rules that governed both the formation and the interpretation of instruments used to transfer sovereign rights. Under these rules, legal instruments (regardless of their form) could transfer sovereign rights only if they did so in clear and express terms, and those terms were to be given their ordinary and customary meaning as of the time of adoption. Because the Constitution was an instrument used for this purpose, the Founders recognized that the applicable rules were “clearly admitted by the whole tenor of the instrument.” Accordingly, these rules became an inextricable part of the legal content conveyed by the text of the Constitution. Not surprisingly, the Supreme Court used these rules to interpret the Constitution from the start. Recovering this constitutional law of interpretation has at least two important implications. First, by “admitting” the background rules of interpretation, the Constitution requires interpreters to employ some form of originalism in constitutional interpretation. Second, the nature of the Constitution and the rules governing its interpretation confirm that the Supreme Court has properly employed three doctrines to uphold the States’ residual sovereignty—namely, sovereign immunity, the anticommandeering doctrine, and the equal sovereignty doctrine.

The authors presented an earlier version of this paper at the February 2022 Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference at the University of San Diego School of Law.


New Supreme Court Cases of Originalist/Textualist Interest
Michael Ramsey

Last week the U.S. Supreme Court agreed to hear eleven new cases, at least two of which have originalist/textualist significance.

(a)  Groff v. DeJoy is expressly a bid to overrule the preposterous holding of the Burger Court in Trans World Airlines v. Hardison that the phrase "undue hardship" in Title VII's protections against religious discrimination means just "more than a de minimis cost."  Josh Blackman comments at Volokh Conspiracy: "May the 'de minimis' test go the way of Trans World Airlines."  Agreed! (And I bet the Court will too.)

More generally I'd like to see the case cut back on the often-stated (but inconsistently followed) canon that overruling statutory precedent should carry an especially high burden.  The Court's obligation is to get the law right, subject to the usual constraints of precedent (whatever those may be), not any more or less than that.

(b) Tyler v. Hennepin County, Minnesota is a takings case that turns on the meaning on "property" in the Fifth Amendment.  Also at Volokh Conspiracy, Ilya Somin has a summary and discussion of the case, including this statement of the facts from Tyler's attorneys at the Pacific Legal Foundation:

As an elderly widow living alone, Geraldine Tyler was doing just fine in the one-bedroom condo she owned in Minneapolis. That is, until 2010, when a rise in neighborhood crime and frightening incidents near her home alarmed Geraldine and her family and prompted her hasty move to a safer area, where she rented an apartment. 

Once Geraldine moved, she could no longer afford the property taxes on her condo in addition to the rent on her apartment. The taxes piled up, and Tyler accrued a $2,300 debt. In 2015, when the total tax debt, including penalties, interest, and fees, was $15,000, Hennepin County, Minnesota, seized the condo and sold it one year later for $40,000. Instead of keeping the $15,000 it was owed and refunding Geraldine the sale surplus, the county kept all of the $40,000. 

The county and the lower court relied on a state statute abolishing property rights in this situation, arguing that the Constitution only protects property as defined by state law (so there was no taking because Tyler had no property interest in the residual equity).  Professor Somin notes that the Sixth Circuit reached a conflicting result in a similar case, and comments: 

[The Sixth Circuit] ruling is part of a longstanding debate over the extent to which the property rights protected by the Takings Clause are purely defined by state law (in which case the state can often avoid takings liability simply by redefining them), or whether they are also defined by some combination of general legal tradition and natural law. The Sixth Circuit  is right to conclude that broader legal principles constrain the states here. But I would add that, at least as a matter of original meaning, states are also constrained by natural law understandings of property rights. I briefly cover this point in this article (pp. 52-53), and also in Chapter 2 of my book The Grasping Hand.

Given the high value the Founders placed on property rights, it would be strange—to say the least—if these constitutional rights were left entirely at the mercy of state governments to redefine as they please, because state law protects them and plays a key role in defining their scope. 

Sounds right to me, and I would think (without having looked at it too closely) that the Court is likely to agree.  Otherwise states could save themselves a lot of money by declaring that no one has a property right in any land the state decides it needs.


Cass Sunstein: Experiments of Living Constitutionalism
Michael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard Kennedy School) has posted Experiments of Living Constitutionalism (forthcoming, Harvard Journal of Law & Public Policy) (11 pages) on SSRN.  Here is the abstract:

Experiments of Living Constitutionalism urges that the Constitution should be interpreted so as to allow both individuals and groups to experiment with different ways of living, whether we are speaking of religious practices, family arrangements, political associations, civic associations, child-rearing, schooling, romance, or work. Experiments of Living Constitutionalism prizes diversity and plurality; it gives pride of place to freedom of speech, freedom of association, and free exercise of religion (which it would protect against the imposition of secular values); it cherishes federalism; it opposes authoritarianism in all its forms. While Experiments of Living Constitutionalism has considerable appeal, my purpose in naming it is not to endorse or defend it, but as a thought experiment and to contrast it to Common Good Constitutionalism, with the aim of specifying the criteria on which one might embrace or defend any approach to constitutional law. My central conclusion is that we cannot know whether to accept or reject Experiments of Living Constitutionalism, Common Good Constitutionalism, Common Law Constitutionalism, democracy-reinforcing approaches, moral readings, originalism, or any other proposed approach without a concrete sense of what it entails – of what kind of constitutional order it would likely bring about or produce. No approach to constitutional interpretation can be evaluated without asking how it fits with the evaluator’s “fixed points,” which operate at multiple levels of generality. The search for reflective equilibrium is essential in deciding whether to accept a theory of constitutional interpretation.


Seth Barrett Tillman has some Biden-Related Questions
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Some Biden-related questions no one seems to be asking?  Here are some of the ones relating to the Constitution:

For the purposes of the Impeachment Clause (Article II, Section 4), and the allegations surrounding Biden’s VP duties, is President Biden a current office-holder or a former office-holder? 

And if President Biden is not a current office-holder for the the purpose of the Impeachment Clause ... Given that President Biden’s woes stem from a position which he formerly held, and that there was a break in his government service between his being VP and P, one asks: “Are former officers impeachable?”

Is there any statute of limitations defense for impeachable offenses? Should the statute of limitations during impeachment proceedings mimic the statutory statutory statute of limitations where the alleged impeachable offense is a federal criminal offense? (Tillman: my tentative answer is “yes.” See also Josh Blackman & Seth Barrett Tillman, ‘Can President Trump be Impeached and Removed on the Grounds of Incitement?,’ Reason—Volokh Conspiracy (Jan. 8, 2021, 3:57 AM), <https://tinyurl.com/y5vz3d6o>.)

Is there any implied statute of limitations arising from the Constitution itself? 

My answers are (a) he is a current office holder and so subject to impeachment including for offenses in a former office [the impeachment clause says the President can be impeached for high crimes and misdemeanors, not just for high crimes and misdemeanors in his current office], and (b) there's no constitutional version of a statute of limitations [there's nothing about a limitations period in any of the impeachment-related clauses, and that's good enough for me: whether a remote past event is grounds for impeachment/removal is up to the House/Senate].

Note that these answers would also apply to President Trump if he were re-elected President and then re-impeached (if that's a word) for the January 6 events.


Let’s Not Overthink the National Popular Vote Compact Which is Clever but Cannot Work
Andrew Hyman

This is a very late reply to a blog post here by Michael Ramsey about the proposed National Popular Vote Compact (“NPV Compact”).  This compact would oblige each state to choose presidential electors based entirely upon who wins the national popular vote.

Many provisions of the U.S. Constitution are elegantly simple and straightforward, and that includes this one: “Each State shall appoint…a Number of Electors….”  It seems straightforward, and it is what it seems.  No combination of states can appoint the electors of another state.  Each state establishes who its electors are, the word “appoint” meaning to establish.

Even if the Constitution did not mention any role for a state’s legislature, such a role would be fine, because a state legislature is part of the state.  Likewise, a state’s citizens are part of the state.  Perhaps a legislature may also consider anyone lawfully within its borders to be part of the state.  But one state is obviously not part of another state, just as the United Nations General Assembly is obviously not part of any U.S. state, and so each state must decide by itself who to appoint as electors.  The state decides the manner of appointment, the state decides who to appoint, and the state carries out the appointment.  Simple.

It doesn’t matter whether Congress approves the NPV Compact.  It doesn’t matter whether the compact says state legislatures are free to withdraw from it at any time.  It doesn’t matter whether the compact is a “treaty” versus a mere “agreement.”  It doesn’t matter whether the NPV Compact would allow each state to appoint electors based upon votes cast nationwide under a patchwork of unequal voting procedures.  It doesn’t matter whether the NPV Compact tramples upon protection given to smaller states.  All of that is perhaps worth pondering a little bit, but none of it is really important here.  

The NPV Compact violates these plain words: “Each State shall appoint…a Number of Electors….”  If those words are not empty or trivial, then each state has the power and responsibility to decide who to appoint.  The Constitution elaborates upon that appointment power, but in doing so never involves any other states or nations.

The appointment power of a U.S. president is instructive.  The Constitution involves the U.S. Senate in that process, but once the Senate has confirmed a nominee, then the appointment power allows the president complete power to either appoint the confirmed nominee, or else not appoint the confirmed nominee and instead nominate someone else.  No federal statute (or treaty or executive agreement or congressional-executive agreement) could require the president to do one or the other, much less to do one or the other based upon what the U.N. General Assembly or some other entity wants.

The appointment power is not merely ministerial, and it cannot be made ministerial by any compact. Yet that is exactly what would happen if the NPV Compact requires a state to robotically name electors based upon a choice made outside the state. Let’s not overthink this.

When the Constitution was being drafted and ratified, it was understood that appointment did not merely refer to the ultimate presidential designation of a nominee for a particular office, but rather appointment included as well the broader process leading up to that designation.  For example, Thomas McKean in the Pennsylvania Ratification Convention, on 10 December 1787, said “The Senators have a share in the appointment of certain officers….”  Likewise, the writer known as the Federal Farmer wrote on 17 January 1788  that the Senate will “share in the appointment of officers….”  So, when the Constitution says each state will appoint its electors, that refers to more than the ultimate designation of particular people, and includes the selection of those people.

Jed Shugerman: The Bi-Partisan Enabling of Presidential Power
Michael Ramsey

Jed Handelsman Shugerman (Fordham Law School) has posted The Bi-Partisan Enabling of Presidential Power: A Review of David Driesen's 'Specter of Dictatorship: Judicial Enabling of Presidential Power' (Syracuse Law Review, Vol. 73, 2022) (20 pages) on SSRN.  Here is the abstract:

In "The Specter of Dictatorship: Judicial Enabling of Presidential Power," [Ed.: Stanford University Press 2021, book description here] David Driesen questions the unitary executive theory and other doctrines of unchecked executive power. He offers primarily a critique of purposivism, a mix of original public meaning and more recent history illuminating those purposes: the Founders’ anti-tyranny purpose and then the rise of European tyranny from Nazi Germany to contemporary Hungary, Turkey, and Poland.

This review first focuses on Driesen’s approach to Congress: He identifies the broad congressional delegation of powers to the president as a source of expansive executive power, but he does not entertain that doctrines of deference to agencies and executive power may be a problem, nor whether some doctrines (e.g., limiting Chevron or expanding non-delegation) may be potential solutions. Second, the problem of enablement is not just judicial: Presidents use the appointment process to stack the courts with lawyers who had significant experience exerting and/or expanding executive power: a pipeline from Article II lawyers to Article III judges. Third, on the question of anti-tyranny from the Founding to more modern European examples, some of Driesen’s evidence (especially Poland) may be counter-evidence in favor of stronger separation of powers as a check against ambitious party leaders. Driesen’s account of the Founding is more accurate than the unitary theorists’ account, but he assumes that the anti-unitary position is the pro-liberty position. The unitary advocates have their own good-faith theory of liberty, even if that theory is a reflection of 1980s Republican ideology, more than of the 1780s republican ideology.

Unsurprisingly, I disagree with the review's assessment of the unitary executive theory (which is delivered much more strongly and at greater length in the review than the abstract suggests).  But I agree that the chief culprit in the modern expansion of executive power is congressional delegation, and especially the ability of the President and the agencies to claim delegated power from statutory language that is (at best) ambiguous.  And yet most modern commentators who purport to abhor the overreach of executive power at the same time oppose any attempt to rein in claims of delegation.  Professor Shugerman is a notable exception.


Eric Segall on Baude and Sachs on Vermeule on Originalism [Updated with my Thoughts] [and a Response]
Michael Ramsey

At Dorf on Law, Eric Segall: Of Vermeule, Baude and Sachs, and Saving Originalism by Destroying It (commenting on this review of Adrian Vermeule's Common Good Constitutionalism). From the introduction:

One of the recurring themes of both Vermeule's critiques of originalism and my own is that once judges are allowed to discard the expected applications of those who ratified the relevant constitutional text, which most of today's originalists say is permissible, then originalism is essentially irrelevant to constitutional litigation and becomes a smoke screen for the imposition of modern-day judicial value judgments--they very thing originalists says they don't want. ...

Baude and Sachs react quite harshly to the "illusion" language but their defense of originalism proves the point Vermeule, I, and many others have been making for a long time. The reason today's originalism is an illusion according to Vermule, in the words of Baude and Sachs, is because so "long as it’s 'possible' to 'contradict[] the unanimous expectations of the enacting generation,' Vermeule argues, then 'original’ meaning is ‘fixed’ in only the most nominal sense." Baude and Sachs respond to this critique not by denying that originalism allows judges to discard well-known expected applications of constitutional text but by confirming that originalism allows this move. They say the following:

This issue...has been solved, as one can discover by reading the works cited in the book’s endnotes. A 'familiar feature of legal rules is that the same rule can produce changing outcomes over time....' As Professor Christopher Green has described, legal norms often operate as functions from facts to legal outcomes. As their designated inputs change, the outputs change accordingly. But the rules themselves remain the same, because not every change in facts affects a designated input.

In plain English, Baude and Sachs argue that a vague and imprecise text such as the equal protection clause may lead to different and updated judicial applications over time--applications that may contradict what the ratifiers of the equal protection clause thought it meant as to a specific problem--if the facts change. They approvingly cite Village of Euclid v. Ambler Realty Co., for the proposition that "while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions." And furthermore, according to Euclid, “a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles." Baude and Sachs apparently believe that this description of constitutional law is "originalist."

And in conclusion:

Originalism has no real purchase in the cases that we care most about because they involve open-ended constitutional language that calls for judges to make contemporary judgments about circumstances, facts, and perceptions of facts that have changed in numerous ways since 1791 or 1868. Arthur Machen knew this in 1900 and most of us know it today. If originalism is our law, as Baude and Sachs say, that's only because their version of originalism is effectively living constitutionalism. In order to save originalism, they had to destroy it.

ADDED: My thoughts --

I've objected to this line of argument many times and so won't repeat my views at length.  I'll only say this: Consider the leading recent Supreme Court cases, Bruen and Dobbs.  In my view, in neither case does the correct originalist analysis depend at all on "contemporary judgments about circumstances, facts, and perceptions of facts that have changed in numerous ways since 1791 or 1868."  As to Dobbs, the originalist question is whether there was a broad understanding in 1868 that abortion was a core right that was viewed as one of the "privileges or immunities of citizens of the United States."  The answer is (so far as I can see from the historical record), clearly not.  Dobbs is a hard case because of precedent, not because of the difficulties of understanding or applying the original meaning.  As to Bruen, the originalist question is whether the sort of discretionary licencing program for firearms that New York had in place had any counterparts in mid- to late-nineteenth century practice.  And the answer depends on whether one thinks Saul Cornell is right about the history.  There's no living constitutionalism to any of this.

ERIC SEGALL responds:

The reality is that the Dobbs Court did not ask what the original meaning of the word liberty was or the phrase privileges or immunities but even asking that question isn’t really originalist for the same reasons Bruen is not originalist: constitutional law in 1791 and 1868 was not all or even mostly about history. It was balancing the importance of the right against the states’ interest. By not conducting that analysis in Dobbs or Bruen, the Court was using history but not in an originalist manner as Noah Feldman explained here.


Aditya Bamzai & Samuel Bray: Debs and the Federal Equity Jurisdiction
Michael Ramsey

Aditya Bamzai (University of Virginia School of Law) & Samuel L. Bray (Notre Dame Law School) have posted Debs and the Federal Equity Jurisdiction (98 Notre Dame Law Review 699 (2022)) (revised final version) (42 pages) on SSRN.  Here is the abstract:

The United States can sue for equitable relief without statutory authorization. The leading case on this question is In re Debs, and how to understand that case is of both historical and contemporary importance. Debs was a monumental opinion that prompted responses in the political platforms of major parties, presidential addresses, and enormous academic commentary. In the early twentieth century, Congress enacted several pieces of labor legislation that reduced Debs’s importance in the specific context of strikes. But in other contexts, the question whether the United States can bring suit in equity remains disputed to this day. The United States has expressly invoked, or implicitly relied on, Debs in some of the most high-profile cases in recent years, including United States v. Texas.

This Article explains the equitable principles at work in Debs and shows how these principles still have a normative basis today. Collecting materials from traditional equity practice and historic treatments of Debs that have escaped the attention of the recent academic literature, this Article especially considers the connection that the Debs Court draws between equitable relief and a proprietary interest. It shows how the equity-property connection works as an empowering and limiting principle for the ability of the United States to bring a suit in equity. And it offers guidance to the federal courts by explaining and defending the traditional contours of their equity jurisdiction.

I have the feeling (without thinking about it too closely) that Debs just has to be wrong.  But these are the experts.


A Poem on Constitutional Originalism
Mike Rappaport

My apologies for posting another work by the AI ChatGPT, but I really liked this.  Perhaps that is because I am particularly challenged as a poet and so it seemed better than other efforts by ChatGPT.  

I asked ChatGPT to write a poem on constitutional originalism.  Here was the result (in seconds time of course). 


The Constitution, a guiding light,

Originalism, a principle bright.

From the founders' words, we must not stray,

Their intent, in all we do, must stay.


A document of laws, etched in time,

To keep our nation in its prime.

A framework for freedom, strong and true,

Guided by original intent, anew.


We must not twist the words they wrote,

To suit our own, a different coat.

The Constitution's meaning, clear and pure,

Originalism, our nation's cure.


So let us honor the founders' call,

And keep the Constitution, standing tall.

With originalism as our guide,

Our nation's future will abide.


Update: Eric Segall writes a poem expressing a negative view of originalism.