The Originalism Blog

Lawrence Solum & Randy Barnett: Originalism after Dobbs, Bruen, and KennedyMichael Ramsey

Lawrence B. Solum (University of Virginia School of Law) & Randy E. Barnett (Georgetown University Law Center) have posted Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition (38 pages) on SSRN.  Here is the abstract:

In three recent cases, the constitutional concepts of history and tradition have played important roles in the reasoning of the Supreme Court. Dobbs v. Jackson Women’s Health Organization relied on history and tradition to overrule Roe v. Wade. New York State Rifle & Pistol Association v. Bruen articulated a history and tradition test for the validity of laws regulating the right to bear arms recognized by the Second Amendment. Kennedy v. Bremerton School District looked to history and tradition in formulating the implementing doctrines for the First Amendment Establishment and Free Exercise Clauses.

These cases raise important questions about the Court’s approach to constitutional interpretation and construction. Do Dobbs, Bruen, and Kennedy represent a new theory of constitutional interpretation and construction based on history and tradition? In the alternative, should the references to history and tradition in these opinions be understood through the lens of constitutional pluralism as modalities of constitutional argument? Finally, can the use of history and tradition in Dobbs, Bruen, and Kennedy be reconciled with the Supreme Court’s embrace of originalism?

Part One of this article elucidates the constitutional concepts of history and tradition. Part Two lays out four distinct roles that history and tradition can play: (1) as evidence of original meaning and purpose, (2) as modalities of constitutional argument within a constitutional pluralism framework, (3) as a novel constitutional theory, which we call “historical traditionalism,” and (4) as implementing doctrines. Part Three investigates the roles of history and tradition in Dobbs, Bruen, and Kennedy. In Part Four articulates a comprehensive strategy for the incorporation of history and tradition in constitutional jurisprudence.

And from Part IV (footnotes omitted):

... We begin with the core originalist commitment: the original public meaning of the constitutional text should bind constitutional actors. This core commitment requires originalist judges to consider history and tradition as sources of relevant, and sometimes highly probative, evidence of original meaning. Thus, historical practice, historical precedent, and tradition frequently provide evidence favoring one interpretation of the constitutional text over another. For originalists, consideration of such evidence of history and tradition is mandatory, not optional. Originalist judges are bound by the  original public meaning of the constitutional text; this entails that they are obligated to consider all the relevant evidence of original meaning in good faith.

Originalist judges can be bound by history and tradition in a second way. For some constitutional provisions, history and tradition are part and parcel of the original public meaning of the constitutional text. The clearest example of this is the Preservation Clause of the Seventh Amendment. That clause preserves the history and tradition of the jury trial as of 1791. Because history and tradition provide the content of the “right to trial by jury” that is “preserved,” originalist judges are bound by that history and tradition.

Originalist judges can be bound by history and tradition in a third way. When implementing doctrines are needed to give legal effect to underdeterminate constitutional text, originalist judges should consider themselves bound to consider history and tradition that clarifies the original purpose of the constitutional provision. The first two roles for history and tradition follow from widely-accepted premises that almost all originalists acknowledge. This third role is supported by a theory of constitutional construction developed by Professors Barnett and Bernick. 

Agreed.  There is outstanding analysis throughout, and in particular an important antidote to the flood of academic commentary proclaiming that the Court's recent cases aren't originalist.  As the authors say, history and tradition are conventional tools of originalist interpretation (although they can be more that that as well.)

Mila Sohoni: The Puzzle of Procedural OriginalismMichael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted The Puzzle of Procedural Originalism (72 Duke Law Journal (forthcoming 2023)) (77 pages) on SSRN.  Here is the abstract:

On a daily basis, lawyers and judges consult and apply the rules of subject matter jurisdiction and personal jurisdiction. These doctrines—the workhorses of procedural law—ostensibly spring from the Constitution’s text, but their substance owes more to considerations of fairness, efficiency, and sound policy than it does to original meaning. Indeed, these doctrines are among the most openly and obviously nonoriginalist doctrines in constitutional law. Curiously, the originalist movement has almost totally ignored this everyday terrain. That is beginning to change. Recent overtures by Supreme Court Justices suggest that originalists are now poised to advance into the field of civil procedure. Reorienting extant procedural doctrine around the polestar of original meaning could have dramatic effects: for example, it could oust corporations and D.C. citizens from suing or being sued in diversity while throwing into disarray the doctrines that govern the vast set of suits in which state and federal courts exercise personal jurisdiction over out-of-state defendants. In these and other respects, an originalist turn in procedure may have momentous consequences for our law.

This Article examines this emergent phenomenon of “procedural originalism”—its past, its present, and its prospects. It describes the intellectual backstory of originalism’s engagement with civil procedure and remedies and the fresh uptick of attention to the originalist underpinnings of various procedural and remedial doctrines. It surveys the discrepancies between original public meaning and bread-and-butter staples of civil procedural doctrine while showing how civil procedural doctrine has drawn its substance from considerations beyond mere original meaning. And it sketches the challenging questions that procedural originalism poses for some of the many theories of originalism.

Above all, however, this Article explores what originalism’s late arrival to the domain of civil procedure reveals about the construction of the originalist agenda. A prominent charge levied against originalism is the claim that originalism is not an apolitical legal interpretive methodology but rather a tool for selectively inscribing into constitutional law the political goals of the conservative legal movement. What is striking about civil procedure is that an originalist remodeling of procedural law would call for some outcomes that are nonaligned with, or even sharply adverse to, the aims of key conservative movement constituencies. The future course of procedural originalism therefore promises to throw light on the contours of originalism’s constitutional politics and, ultimately, will offer a new test of the charge that originalism is a proxy for politics rather than a theory of law.

At Legal Theory Blog, Larry Solum says "Highly recommended.  Download it while it's hot!" (in red with yellow highlighting, which I think is a new level of excitement for him).

UPDATE:  Also at Legal Theory Blog, it is co-Download of the Week.

It's an important and interesting paper, from which I mostly conclude that substantial originalist clean-up is needed in constitutional civil procedure, likely leading to some outcomes that political conservatives won't like.

A Response to Professor Cornell's Statement on 12/19/2022 Commenting on Stephen HalbrookRichard Gardiner

[Ed.: I'm back.  There's a lot to post about.  But first, a guest post from Richard Gardiner, responding to this guest post by Saul Cornell.]

Professor Saul Cornell stated in The Originalism Blog on 12/19/2022:

[Stephen Halbrook] does not seem familiar with the exposition of the Statute of Northampton in Michael Dalton’s Country Justice, the most widely reprinted and influential popular guide to the law from the eighteenth century.   Dalton’s account of the traditional prohibition on armed travel explains why Halbrook’s reading of the Massachusetts statute he cites is profoundly anachronistic.  Traveling armed, Dalton reminded his readers, who included among others John Adams and Thomas Jefferson, was a threat to the peace and a per se violation of the law because “it striketh a fear and Terror” in those who did not violate the law which prohibited traveling habitually armed.  (Emphasis added)

Professor Cornell, however, seems not to understand Dalton.

The edition of Dalton’s Countrey Justice from which Professor Cornell quotes is the 1666 edition in which Dalton stated in full:

1. 12. All such as shall go or ride armed (offensively) in Fairs, Markets or elsewhere; or shall wear, or carry any Guns, Dags or Pistols charged; it seemeth any Constable, seeing this, may arrest them, and carry them before the Justice of Peace, and the Justice may bind them to the Peace; yea, though those persons were so armed or weaponed for their defense upon any private quarrel, &c. for they might have had the peace against the other persons: and besides, it striketh a fear and terrour into the Kings Subjects.

Michael Dalton, The Countrey Justice, Containing the Practice of the Justices of the Peace As well in as out of their Sessions, at Chapter LXXIX, 194 (London, 1666) (emphasis added).

Dalton thus drew a distinction between to “go or ride armed” and to “wear, or carry” “charged” (loaded) firearms, the former referring to wearing body armor, a distinction evidenced by the reference to persons being so “armed or weaponed . . . .”  Moreover, Dalton emphasized that the wearing of armor must be done “offensively,” i.e., not simply for self-defense, but in an aggressive manner so as to inculcate “fear and terrour” in the populace. 

Dalton’s discussion of the Statute of Northampton also incorporated the Elizabethan royal proclamations -- issued more than two centuries after the Statute of Northampton -- which regulated carrying weapons. 

Notably, Dalton explains that the only consequence for persons going or riding wearing armor, or carrying firearms, is that the justice of the peace “bind them to the Peace,” i.e., the persons may have to post a peace bond -- an agreement to pay a sum certain to the King if the peace is breached.

Indeed, in a later version of The Country Justice, Dalton recounts that, if it is proclaimed by a justice of the peace that no one in a certain house “shall go armed . . . in offense of” the Statute of Northampton, and any such persons “do depart in peaceable Manner, then hath the Justice no Authority . . . to commit them to Prison, nor to take away their Armour.”  Michael Dalton, The Country Justice, Containing the Practice, Duty, and Power of the Justices of the Peace As well in as out of their Sessions, at Chapter 44, 129 (London, 1727) (emphasis added).

Emphasizing that mere carrying of weapons was not an offense, in the chapter entitled Guns (Chap. XXIX), Dalton writes:

3.  No person may carry in his journey any Gun (Dag, or pistol) charged, or Bow bent, (but only in time and service of War, or in going to or from Musters) except he hath per annum 100 li. [shillings] in Lands, &c.

Thus, a person who had per annum 100 shillings in Lands was entitled to carry in his journey a loaded Dag or pistol.  The British shilling was worth 1/20 of a pound, so, to be able to carry firearms lawfully, a person had to have per annum 5 pounds in Lands (this would likely have been a relatively small farm as a yeoman farmer was someone who had per annum 40 shillings in Lands).

Programming Note: Further Blog HolidayMichael 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 InterpretationMichael 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 InterestMichael 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 ConstitutionalismMichael 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 QuestionsMichael 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 WorkAndrew 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 PowerMichael 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.