The Originalism Blog

John McGinnis and Michael Rappaport: An Originalist Approach to Prospective OverrulingMike Rappaport

John McGinnis (Northwestern) and Michael Rappaport (USD) have posted An Originalist Approach to Prospective Overruling (Notre Dame Law Review 2023) on SSRN.  Here is the abstract: 

Originalism has become a dominant jurisprudential theory on the Supreme Court. But a large number of precedents are inconsistent with the Constitution’s original meaning and overturning them risks creating enormous disruption to the legal order. This article defends a prospective overruling approach that would harmonize precedent with originalism’s rise and reduce the disruption from overrulings. Under prospective overruling, the Court declares that an existing statute violates the original meaning but will continue to be enforced because declaring it unconstitutional would produce enormous costs; however, future statutes of this type will be voided as unconstitutional. Under our approach, the Court would employ a rule based doctrine for gradually returning our constitutional law to the original meaning without upsetting the reliance interests that stare decisis rightly protects.

While originalists, like Justice Antonin Scalia, have been extremely critical of the prospective overruling that the Warren Court used to implement its constitutional revolution, we here defend an approach to prospective overruling that would avoid these originalist criticisms. We show that prospective overruling is a legitimate form of the common law of precedent and thus encompassed by the judicial power. We also show that prospective overruling is not dicta that runs afoul of the Constitution’s case or controversy requirement. In many cases, the substantive constitutional question is so intertwined with the question of precedent that a decision on a provision’s original meaning is necessary to decide the stare decisis issue. In other cases, the resolution of the substantive question should be treated as a holding, even if not strictly necessary to the result, because the question was answered using a method that appears designed to resolve the case. We then illustrate how and when prospective overruling should be applied by reference to cases involving the Commerce Clause, the Nondelegation Doctrine, and the Treaty Clause.

Programming Note: Blog HolidayMichael Ramsey

Programming note: I will be taking a further sabbatical-related blog holiday for most of the rest of this month.  I plan to return in April.

Geoffrey Heeren: Rethinking the Migration or Importation ClauseMichael Ramsey

Geoffrey Heeren (University of Idaho College of Law) has posted Immigration Law and Slavery: Rethinking the Migration or Importation Clause (Wisconsin Law Review, Vol. 2023, No. 4, 2023) (56 pages) on SSRN.  Here is the abstract:

The traditional account of the origins of federal immigration law mostly glosses over its deep connection to slavery. An examination of that connection calls the constitutional foundation for immigration law into question, alters the calculus for judicial review of federal immigration action, reframes our understanding of federalism, and lays bare the nation’s exploitative dependence on immigrant labor. This article makes this paradigm shift by focusing on a long-neglected textual source for federal immigration power: the Migration or Importation Clause of Article I, Section 9, Clause 1 of the Constitution. Scholars have almost uniformly discounted the Migration or Importation Clause as a source for federal immigration power because of its connection to slavery. In sharp contrast, this article contends that the Migration or Importation Clause makes sense as a source for the federal immigration power because of its connection to slavery, which was deeply intertwined in the early Republic with immigration.

The history of the Constitutional Convention reveals that the framers specifically discussed slavery and immigration together and were aware that their chosen wording for the Migration or Importation Clause would apply to free immigrants. An originalist understanding of the Clause therefore supports a federal immigration power under the Commerce Clause, which was the presumptive basis for regulating the slave trade after the 1808 date set out in the Migration or Importation Clause.

The legacy of the Migration or Importation Clause continues to be felt in immigration law. Slavery was an atrocity that inflicted intergenerational harm on blacks; in contrast, immigrants have often enjoyed opportunities and passed on wealth. Nonetheless, the current structure of immigration law perpetuates nineteenth century labor norms for the millions of undocumented workers who under threat of deportation do much of the nation’s most difficult work for lower pay and with fewer legal protections than documented workers. Reckoning with the ties between immigration law and slavery offers an opportunity to reflect on the failures of this system, and also reveals a redemptive path forward. In the face of an exploitative system, the strategies and logic of abolitionism offer hope for a better immigration future.

In my (tentative and evolving) view of the source of federal power over immigration, I agree that (1) the migration or importation clause strongly implies that Congress has power over voluntary migration as well as importation of slaves and (2) that the commerce clause is the likely source of much of this power, as the founding generation presumably thought that most migration would be by commercial ships.  Locating the immigration power solely in the commerce clause, though, may suggest that Congress has no power over voluntary independent migration across land borders.  That may just be a gap in the Constitution's allocation of federal power, as the drafters likely didn't envision much overland migration into the U.S. given the founding-era borders.  And in the absence of federal power, the power would go to the states.  But it's also worth considering Rob Natelson's suggestion that Congress' power over migration also arises from the power to define and punish offenses against the law of nations (his contention is that entering sovereign territory without permission of the sovereign was such an offense).

Ilan Wurman: Importance and Interpretive QuestionsMichael Ramsey

Ilan Wurman (Arizona State University  Sandra Day O'Connor College of Law) has posted Importance and Interpretive Questions (Virginia Law Review, forthcoming) (66 Pages) on SSRN.  Here is the abstract:

In its past term, the Supreme Court formalized what it calls the major questions doctrine. The doctrine, as currently formulated, appears to require a clear and specific statement from Congress if Congress intends to delegate questions of major political or economic significance to agencies. The doctrine has been almost universally assailed on the right by scholars who argue that the doctrine is inconsistent with textualism and on the left by those who claim it is a recently invented, functionalist tool devised to reach anti-administrativist results. One can explain at least some of the cases, however, in a way that constructs a coherent doctrine in which importance has a significant but narrow role in resolving interpretive questions involving ambiguity or uncertainty. Thus understood, such a doctrine could be defensible, if not as a substantive canon, then as a kind of linguistic canon. Unlike other linguistic canons, such a canon would be about how people and lawmakers use language to accomplish results in a circumscribed range of contexts—namely, the delegation of important authorities, whether to other private actors, to government actors in Constitution, or to government actors in the executive department. But unlike substantive canons, it would not relate to a substantive value encoded in the Constitution or in longstanding tradition. Existing empirical work about how legislators legislate, and insights from the philosophy of language, suggest that such a doctrine may be consistent with textualism, and historical research further reveals that a canon of this type may be a longstanding feature of constitutional, contract, and statutory interpretation in related contexts. More provocatively, these same intuitions about importance may explain some substantive canons that are difficult for textualists to justify.

Fred Smith on Mila Sohoni on Procedural OriginalismMichael Ramsey

At Jotwell, Fred O. Smith Jr. (Emory): Originalism's Procedural Puzzle (commenting on Mila Sohoni, The Puzzle of Procedural Originalism, 72 Duke L.J. 941 (2023)).  From the introduction: 

Here is the puzzle. On one hand, various species of originalism have ostensibly come to dominate American constitutional law. “We are all originalists,” Justice Elena Kagan contended during her 2010 confirmation hearings. “Is originalism our law?” William Baude asked in widely cited 2015 Columbia Law Review article. (His answer was a qualified and nuanced “yes.”) And in the last couple of years, originalism at the Supreme Court has become broad and deep. Broad, in that originalist arguments have proven resistant to countervailing methodological tools such as precedent or even text, allowing originalist arguments to prevail in a wider range of constitutional settings. Deep, in that on issues such as gun rights, the Court has demanded more and more in the way of precise historical analogies from the Founding (or the Second Founding).

On the other hand, Mila Sohoni observes that despite originalism’s rise, one area has been mostly absent from originalism’s reach—procedure. Sohoni focuses on a body of law she terms “constitutional civil procedure,” explaining that a number of important questions in civil procedure turn on interpretations and constructions of constitutional text. Sohoni cabins her analysis to constitutional doctrines that tend to be taught in civil procedure as opposed to courses on constitutional law, federal courts, or remedies. Originalism has barely touched core questions of civil procedure. “It would be tempting to say that all this has been hidden in plain view, but that would only be a half-truth. Civil procedure’s nonoriginalism hasn’t been hidden at all. And yet—until recently—few originalists have faulted procedural law for its infidelity to original meaning.” (P. 992.)

Sohoni offers numerous examples; consider three...

(Via Howard Wasserman at Prawfsblawg.)

2023 Joseph Story Award Goes to Professor Jennifer MascottMichael Ramsey

Originalist scholar Jennifer Mascott (George Mason) is the recipient of the Federalist Society's Joseph Story Award.  From the Society's website:

The Joseph Story Award is given annually to a young academic (40 and under or 10 years on the tenure track or fewer) who has demonstrated excellence in legal scholarship, a commitment to teaching, a concern for students, and who has made significant public impact in a manner that advances the rule of law in a free society. This award is presented during the Federalist Society's Annual Student Symposium.

And from the presentation of the award, by Award Chair Matt Phillips:

Mr. Phillips began by detailing Professor Mascott's scholarly contributions.  Referencing her article "Who Are Officers of the United States?," which he called "an originalist tour de force," Mr. Philips noted that Professor Mascott's "seminal work"situated her at the "forefront of the national debate" on the separation of powers. He said Prof. Mascott is an "intellectual trailblazer" and "stalwart defender of the rule of law." He also pointed out her extensive involvement in the legal profession, including her "incredible thought leadership" as the Co-Executive Director of the Gray Center, Public Member of the Administrative Conference of the United States, and Vice Chair of the Constitutional Law and Separation of Powers Committee within the ABA's Section of Administrative Law and Regulatory Practice, as well as her "tireless public service" at the Office of Legal Counsel in the Department of Justice.

Finally, Phillips described Professor Mascott's strength as a "dedicated teacher and mentor" to her students at Scalia Law. He identified her various roles on campus, including that of faculty director of the law school's Supreme Court and Administrative Law clinics, founder of the Separation of Powers Clinic, and co-professor with two Supreme Court Justices. In the words of her students, she is a "fantastic instructor" and "wonderful person" who "models a commitment to family and takes genuine joy in her profession."

(Via Josh Blackman, the 2018 Story Award winner, at Volokh Conspiracy.)

Professor Mascott's articles include:

Who Are "Officers of the United States"? (Stanford Law Review)

Executive Decisions After Arthrex (Supreme Court Review) (with John Duffy)

Early Customs Laws and Delegation (George Washington Law Review)

Gundy v. United States: Reflections on the Court and the State of the Nondelegation Doctrine (George Mason law Review)

The Dictionary as a Specialized Corpus (BYU Law Review)

New Book: "Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution" by Mary Sarah BilderMichael Ramsey

Recently published: Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution, by Mary Sarah Bilder (University of Virginia Press 2022).  Here is the book description from the publisher:

In this provocative new biography, Mary Sarah Bilder looks to the 1780s—the Age of the Constitution—to investigate the rise of a radical new idea in the English-speaking world: female genius. Bilder finds the perfect exemplar of this phenomenon in English-born Eliza Harriot Barons O’Connor. This pathbreaking female educator delivered a University of Pennsylvania lecture attended by George Washington as he and other Constitutional Convention delegates gathered in Philadelphia. As the first such public female lecturer, her courageous performance likely inspired the gender-neutral language of the Constitution.

Female Genius reconstructs Eliza Harriot’s transatlantic life, from Lisbon to Charleston, paying particular attention to her lectures and to the academies she founded, inspiring countless young American women to consider a college education and a role in the political forum. Promoting the ideas made famous by Mary Wollstonecraft, Eliza Harriot brought the concept of female genius to the United States. Its advocates argued that women had equal capacity and deserved an equal education and political representation. Its detractors, who feared it undermined male political power, felt deeply threatened. By 1792 Eliza Harriot experienced struggles that reflected the larger backlash faced by women and people of color as new written constitutions provided the political and legal tools for exclusion based on sex, gender, and race.

In recovering this pioneering life, the richly illustrated Female Genius makes clear that America’s framing moment did not belong solely to white men and offers an inspirational transatlantic history of women who believed in education as a political right.

Sounds super interesting -- I had not heard anything about this before.  Also only $29.99, which is pretty reasonable for an academic press book (are academic presses finally trying to sell books?).  And the author promises "lots of pictures."

 

Donald Dripps: The "Cruel and Unusual" Legacy of the Star ChamberMichael Ramsey

Donald A. Dripps (University of San Diego School of Law) has posted The "Cruel and Unusual" Legacy of the Star Chamber (Journal of American Constitutional History, forthcoming 2023) (79 pages) on SSRN.  Here is the abstract:

Supreme Court justices have read the “cruel and unusual punishments” clause as prohibiting torturous methods of punishment, prohibiting grossly disproportionate punishments, and/or prohibiting arbitrary discretion over the infliction of the death penalty. All three accounts face familiar and formidable historical challenges. There is general agreement that the founders took the clause from Article 10 of the English Bill of Rights, and that Article 10 repudiated the horrific sentence passed on Titus Oates by the infamous Judge Jeffreys in 1685. Each of the major interpretations fails to account for important pieces of the Oates puzzle.

The methods of punishment inflicted on Oates were two days of horrific flogging, recurring stands in the pillory, and life imprisonment. These methods were not capital, were not unusual in 1685, and were all included in the Crimes Act passed by the First Congress. Oates’s sentence was not, by contemporary standards, disproportionate. His perjuries caused the executions of numerous innocents, quite possibly by torture. By the standards of the times, he deserved hanging.

The Eighth Amendment, however, responded to anti-federalist fears that Congress might adopt torturous methods of capital punishment. Prevailing theories fail to account for the disconnect between what the English provision did and what the American provision meant to do.

This Article argues that prevailing accounts are breathtakingly incomplete. The full story begins not with the flogging of Titus Oates in 1685, but with the abolition of the Star Chamber in 1641. Sentencing Oates, Jeffreys claimed for King's Bench all the Star Chamber's lawless power to determine punishments less than capital. The English Article 10 repudiated this attempt to resurrect the Star Chamber. Then Congress, responding to anti-federalist fears about Congress adopting European-style executions by torture, freighted the "cruel and unusual" language with two additional meanings. The clause now applied to capital, as well as noncapital, penalties. It now also restricted legislative as well as judicial discretion. Synthesizing the English original and the later concerns of the American founders, the Eighth Amendment forbids lawless discretion in both capital and noncapital cases, and torturous methods of punishment. Proportionality was left to the legislature, subject to the powerful check provided by a constitutional requirement of even-handed enforcement.

At a time when the Court is reconsidering longstanding precedents from originalist premises, this account is not only a major advance in the academic literature. It may also be, practically speaking, a matter of life and death.

Pratheepan Gulasekaram: The Second Amendment's 'People' Problem [Updated]Michael Ramsey

Pratheepan Gulasekaram (Santa Clara University School of Law) has posted The Second Amendment's 'People' Problem (Vanderbilt Law Review, forthcoming) (51 pages) on SSRN.  Here is the abstract:

The second amendment has a “people” problem. In 2008, Heller v. District of Columbia expanded the scope of the second amendment, grounding it in an individualized right of self-protection. At the same time, Heller’s rhetoric limited the “the people” of the second amendment to “law-abiding citizens.” In 2022, NYSRPA v. Bruen doubled-down on the amendment’s self-defense rationales, but once again framed the right as one possessed by “citizens.” In the period between the two Supreme Court cases, eight federal courts of appeals wrestled with the question whether the right to keep and bear arms is a citizen-only right. Although those courts proffered varying perspectives on the meaning of “the people,” they uniformly rejected challenges to the federal criminal ban on possession by unlawfully present persons and nonimmigrants. In addition to the federal criminal ban, the immigration code allows for deportation of all noncitizens, including permanent residents, for firearms-related violations. In combination, the Supreme Court’s rhetoric, lower federal court decisions, and federal criminal and immigration statutes excise noncitizens from the “the people” of the second amendment.

This Article is the first to examine the relationship between “the people,” immigration status, and the right to keep and bear arms, in the wake of both Heller and Bruen. My analysis argues that courts undertheorize the systemic effects of constricting “the people” to citizens, or more recently, countenance historical inquiries that yield incoherent results. Intratextual comparison of “the people” of the second amendment with “the people” of the first and fourth amendments fares no better. That appraisal also commands broader inclusiveness for the second amendment’s rightsholders than current jurisprudence permits. This Article concludes that a more coherent theory of second amendment rightsholders would necessarily include most noncitizens, at least when the right is grounded in self-defense from interpersonal violence. This conclusion casts doubt on current federal law that categorically criminalizes possession by certain groups of noncitizens, as well as deportation rules that banish all noncitizens for firearms violations. More capacious interpretations of the second amendment’s “the people” in turn, helps ensure noncitizens’ inclusion under other core constitutional protections.

Just off the top of my head, it seems plausible that as an original matter the Second Amendment protects law abiding citizens and noncitizens while the Second Amendment incorporated by the Fourteenth Amendment protects only citizens (because it's incorporated through the privileges or immunities clause).  But the Supreme Court may have boxed itself out of that result by continuing to say incorporation arises from the due process clause.

UPDATE:  A reader comments:

You said the Privileges or Immunities clause of the 14th Amendment only applies to citizens. I have heard that interpretation before but in reading it I had a different interpretation purely from the text (I fully admit to not knowing much of the legal history). 

 

"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." I can see where people interpret it as limited to citizens but then that leaves a big question, which privileges or immunites. There are tons out there, some of which we recognize and others we don't. If the "...of citizens of the United States" phrase is about who the clause applies to, it doesn't also act as a modifier or the "privileges or immunitites."

 

I read it as such a modifier and then it doesn't limit persons it would apply to. It would simply be a ban on states abridgment similar to how the 1st Amendment is simply a ban on Congressional abridgment, and would therefore apply to all persons.

 

Is there any law review or similar literature out there fully analyzing the text and history regarding this possible reading? Or has it been simply assumed that the clause only applies to citizens?

 

A good question and I don't know the answer, though I admit that for me the limitation to citizens is mostly an assumption.  If anyone knows of in depth scholarship on the issue let me know and I'll post it.

Kellen Funk & Sandra Mayson: Bail at the FoundingMichael Ramsey

Kellen Funk (Columbia University - Law School) & Sandra G. Mayson (University of Pennsylvania Carey Law School) have posted Bail at the Founding (91 pages) on SSRN.  Here is the abstract:

How did criminal bail work in the founding era? This question has become pressing as bail, and bail reform, have attracted increasing attention, in part because history is thought to bear on the meaning of bail-related provisions in state and federal constitutions. To date, however, there has been no thorough account of bail at the Founding. This Article begins to correct the deficit in our collective memory by describing bail law and practice in the founding era, from approximately 1790 to 1810. In order to give a full account, we surveyed a wide range of materials, including founding-era statutes, case law, legal treatises, and manuals for justices of the peace; and original court, jail, administrative, and justice-of-the-peace records held in archives and private collections.

The historical inquiry illuminates three key facts. First, the black-letter law of bail in the founding era was highly protective of pretrial liberty. A uniquely American framework for bail guaranteed release, in theory, for nearly all accused persons. Second: Things were different on the ground. The primary records reveal that, for those who lived on the margins of society, bail practice bore little resemblance to the law on the books, and pretrial detention was routine. The third key point cuts across the law and reality of criminal bail: Both in theory and in practice, the bail system was a system of unsecured pledges, not cash deposits. It operated through reputational capital, not financial capital. This fact refutes the claim, frequently advanced by opponents of contemporary bail reform, that cash bail is a timeless American tradition. The contrast between the law-on-the-books and the practice of bail in the founding era, meanwhile, highlights the difficulty of looking to the past for a determinate guide to legal meaning.