The Originalism Blog

Clark Cunningham & Ute Römer: Can a President Be Impeached for Non-Criminal Conduct?Michael Ramsey

Clark D. Cunningham (Georgia State University College of Law) & Ute Römer (Georgia State University, Applied Linguistics) have posted Can a President Be Impeached for Non-Criminal Conduct? New Linguistic Analysis Says Yes (29 pages) on SSRN.  Here is the abstract:

“Few terms in constitutional law have been so fiercely contested as ‘high crimes and misdemeanors’ [in the impeachment provision].” Although most legal scholars argue that this phrase does not limit impeachment to criminal conduct, reconciling this conclusion with the constitutional text has been a challenge. In this article, co-authored by a law professor and a linguistics professor, we offer what we believe is a new and persuasive approach that arises directly from the constitutional text itself for extending the scope of impeachment to non-criminal conduct. We reach this conclusion by applying the science of linguistics to computer-assisted review of digitized texts written around the period when the Constitution was drafted and ratified. The result of this empirical research is the proposal that “other high crimes and misdemeanors” in the constitutional text should be interpreted as “other high crimes” and “other high misdemeanors.” Our linguistic analysis further establishes that high misdemeanor was a phrase used during the founding era to refer to non-criminal misconduct that requires removal from office. We corroborate this analysis with historical research showing that during the century following the founding era, the U.S. House of Representatives recurrently enacted articles of impeachment using the term “high misdemeanor” to refer to non-criminal misconduct affecting governance.

This has been my view for a while.  In addition to the historical meaning of "misdemeanor" in the context of officeholders, it would be structurally odd if the President could not be impeached for unconstitutional actions (which often would not be criminal).  It's interesting to see it supported by linguistics analysis.

Lawrence Solum & Randy Barnett: Originalism after Dobbs, Bruen, and Kennedy (Revised Version)Michael Ramsey

Lawrence B. Solum (University of Virginia School of Law) and Randy E. Barnett (Georgetown University Law Center) have posted a revised version of their article Originalism after Dobbs, Bruen, and Kennedy: The Role of History and Tradition (Northwestern University Law Review, Vol. 118, No. 1, 2023) (56 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 test for the consistency of state action with the Establishment Clause.

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.

This is the third version of the paper. It replaces a prior version and contains substantial revisions, especially with respect to the discussion of Bruen.

(Via Legal Theory Blog.)

The discussion of Bruen in particular is usefully read along with this article by Joseph Blocher & Eric Ruben: Originalism-by-Analogy and Second Amendment Adjudication.

Joel Alicea: The Originalist Jurisprudence of Justice Samuel AlitoMichael Ramsey

J. Joel Alicea (Catholic University of America — Columbus School of Law) has posted The Originalist Jurisprudence of Justice Samuel Alito (Harvard Journal of Law and Public Policy, Per Curiam, No. 13, 2023) (11 pages) on SSRN.  Here is the abstract:

Since Justice Alito’s appointment to the Supreme Court in 2006, constitutional theorists have struggled with how to characterize his approach to constitutional adjudication. Many scholars have argued that “Justice Alito is not to any significant extent an originalist” but is, instead, “a methodological pluralist” who uses both originalist and non-originalist tools of constitutional adjudication. Others have contended that “Justice Alito’s jurisprudence is originali[st], though not in the traditional sense.”

This disagreement largely stems from the failure of many commentators to appreciate the complex ways in which Justice Alito’s understanding of the judicial role affects his constitutional methodology. He sees judging as a “practical activity” rather than a “theoretical” endeavor, a “craft” rather than a “science.” Judging is a trade passed down through generations of eminent jurists and learned “primarily from experience and from the example of others,” not a set of postulates to be mastered or a series of axioms to be applied. This view of the judicial role leads him to a methodology that is attuned to characteristics of our legal tradition that have long defined Anglo-American judicial practice, such as respect for the limits that the adversarial system imposes on judicial decisions. What emerges is a methodology drawn from the Founding era rather than imposed on it, a methodology that, I will argue, is rightly described as originalist.

Indeed, I would go further: Justice Alito is uniquely positioned to address two of the most significant dangers originalism faces in the coming years. The first is the difficulty of changing current doctrine to better accord with the original meaning of the Constitution, a challenge the originalist justices will confront more and more now that they constitute a majority of the Court. The second is the recent tendency of originalism to become increasingly abstract and difficult to distinguish from its longtime foe, living constitutionalism.

My argument will, therefore, be surprising to many readers: far from being an ersatz originalist, Justice Alito is originalism’s best chance at remaining a viable theory of constitutional adjudication in the years to come.

The article is part of a symposium on Justice Alito's jurisprudence, which has an impressive list of contributors:

• Introduction: The Jurisprudence of Justice Samuel Alito – Robert P. George
• The Originalist Jurisprudence of Justice Samuel Alito – J. Joel Alicea
• The Contextual Textualism of Justice Alito – John O. McGinnis
• Judge Alito’s First Amendment Vigilance on the Third Circuit – Hon. Stephanos Bibas
• The Prudent Judge – Hon. Steven Menashi
• Erie and Contemporary Federal Courts Doctrine – Jack Goldsmith
• Justice Alito on Criminal Law – Kate Stith
• Justice Alito on Criminal Procedure – Hon. Andrew S. Oldham
• Justice Alito: A Justice of Foxes and Hedgehogs – Hon. Amul Thapar
• An Architect of Religious Liberty Doctrines for the Roberts Court – Gabrielle Girgis
• Samuel Alito’s Conservatism—Burkean and American – Adam J. White
• Reason and Fiat in the Jurisprudence of Justice Alito – Adrian Vermeule
• Justice Alito’s Free Speech Jurisprudence – Keith E. Whittington
• The Elevation of Reality over Restraint in Dobbs v. Jackson Women’s Health Organization – Kevin C. Walsh

Susan Carle: Liquidation and the Fourteenth AmendmentMichael Ramsey

Susan Carle (American University Washington College of Law) has posted Liquidation and the Fourteenth Amendment (Florida Law Review, forthcoming) (66 pages) on SSRN.  Here is the abstract:

In Dobbs v. Jackson Women’s Health Center and New York State Rifle & Pistol Association v. Bruen, the Court announced that henceforth it will interpret the Fourteenth Amendment by determining original public meaning at a very concrete level of specificity as based on laws in effect on the date of the Fourteenth Amendment’s ratification, an approach I refer to as maximum-specificity public meaning analysis. As Justice Barrett observed in her concurrence in Bruen, however, that approach will give rise to many difficult questions. James Madison’s concept of liquidation may provide a helpful though limited supplement in this situation, which can help avoid some of the problems maximum-specificity public meaning analysis promises to produce in its insistence on returning to outdated social mores and ignoring constitutional principles that are fundamental to constitutional law today but developed after the Fourteenth Amendment’s adoption.

This Article undertakes a preliminary exploration of what difference it might make to apply liquidation principles to the Fourteenth Amendment. This proposed approach bypasses the ongoing wars between various camps of constitutional interpretivists to find an area of partial agreement that can allow Fourteenth Amendment jurisprudence to develop without a wrenching return to nineteenth century mores.

Specifically, liquidation analysis applies to the interpretation and application of ambiguous constitutional provisions, especially ones that were novel or not well understood at the time of their adoption. Some key aspects of the Fourteenth Amendment are irrefutably ambiguous in this sense. Those ambiguous aspects include (1) what rights the Fourteenth Amendment protects, (2) to what groups its protections extend, (3) what work the respective clauses in Section 1 of the Amendment do, and (4) to what degree Section 5 alters the federalism balance of the original constitution. This Article concludes that liquidation cannot help resolve the contemporary disputes about the latter two aspects of the Fourteenth Amendment’s meaning because those matters still have not been liquidated, but that liquidation can be helpfully applied to the first two aspects of the Fourteenth Amendment’s meaning, producing conclusions that reduce the discord between maximum specificity originalism and contemporary constitutional law principles.

Jay Bybee: The Congruent Constitution [Updated]Michael Ramsey

Jay Bybee (U.S. Court of Appeals for the Ninth Circuit) has posted The Congruent Constitution (Part One): Incorporation (Brigham Young University Law Review, Vol. 48, No. 1, 2022) (69 pages) and The Congruent Constitution (Part Two): Reverse Incorporation (Brigham Young University Law Review, Vol. 48, No. 2, 2022) (100 pages) on SSRN.

Here is the abstract for Part 1:

In Barron v. Mayor of Baltimore (1833), the Supreme Court held that the Bill of Rights applied to the federal government alone. Following the adoption of the Fourteenth Amendment in 1868, the Supreme Court reconsidered the rule of Barron. The Court first reaffirmed the rule of Barron and held that neither the Privileges or Immunities Clause nor the Due Process Clause made the Bill of Rights applicable to the states. It then entered a period of “absorption,” where the Court held that the Due Process Clause guaranteed some minimal rights found in the Bill of Rights, but not necessarily the same rights. Ultimately, the Court announced a congruence principle: incorporated rights would be identical to textual rights, jot-for-jot. The congruence principle came with a limitation, however: only select provisions of the Bill of Rights would apply to the states. Nevertheless, selective incorporation is ongoing, as the Court has declared three provisions of the Bill of Rights incorporated in the last decade, and there are other provisions in the Bill of Rights and elsewhere in the Constitution that the Court may yet declared incorporated.

Incorporation may be the most consequential development in the Constitution’s history. But the Court’s record on incorporation is not a flattering one. This Article reviews the troubled history of incorporation and considers the arguments for incorporating the remainder of the Bill of Rights and provisions of the Constitution beyond the Bill of Rights. The Article concludes with three points. First, the Court’s current theory based on the Due Process Clause is textually incoherent. Selective incorporation is descriptive of what the Court has done, but it is not a theory of interpretation. There are better theories available, but so far, the Court has resisted any additional changes in its approach. Second, in adopting the congruence principle, the Court has over-enforced some constitutional provisions and under-enforced others. The Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to all levels of government. Indeed, the Court’s congruence principle may have deterred it from completing the incorporation of the Bill of Rights. Third, the Article concludes that the congruence principle may be convenient for the Court, but congruence cannot justify the Court’s choices. Incorporation has vastly expanded the Court’s authority to regulate the states, without the sanction of legislation or amendment under Article V. Incorporation has also constrained Congress’s power under Section 5 of the Fourteenth Amendment. Through incorporation the Court has altered both our federalism and our separation of powers.

And here is the abstract for Part 2:

In Bolling v. Sharpe (1954), a companion case to Brown v. Board of Education, the Supreme Court thought it “unthinkable” that the Equal Protection Clause would not apply to the federal government as well as the states and declared it “reverse incorporated” through the Due Process Clause of the Fifth Amendment. The Equal Protection Clause is the most familiar example of reverse incorporation, but it is neither the first nor the only provision of the Constitution that, by its terms, applies to the states alone, but which the Supreme Court has made applicable to the federal government through the Due Process Clause. The Court has, from an early period and throughout its history, systematically ignored the Constitution’s signals dictating to which level of government a provision applies. Aside from the Equal Protection Clause, the most important of these reverse incorporated provisions is the Contracts Clause—which was among the most litigated clauses of the nineteenth century—but there are other clauses that have been effectively reverse incorporated against the federal government as well. What has resulted is a congruent Constitution, a series of good government provisions that the Court has treated as universals rather than binding only the government identified in the Constitution. The Court has made little effort to justify its reverse incorporation decisions through anything more than the amorphous principle of “due process.” One consequence is that reverse incorporated provisions are substantively congruent, but textually discordant.

This Article reviews the history of reverse incorporation, most of which has not been told before. The Article argues that there is nothing “unthinkable” about the Constitution requiring different things of the states and the federal government, and that in the process of creating a congruent Constitution the Court has overenforced some provisions against the federal government and underenforced others against the states. Indeed, the Court’s congruence principle skews the choice of the substantive rule because it forces the Court to find a single rule applicable to both levels of government. The choice of a unitary rule may affect matters as diverse as mortgage relief in times of emergency and reparations for slavery. In the end, congruence is convenient for the Court, but it has blurred our federalism and altered our separation of powers. The latter point is critical: Through reverse incorporation, the Court has vastly expanded its own authority over Congress and the Executive, without the sanction of legislation or constitutional amendment under Article V.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended.  Download them while they are hot!"

FURTHER UPDATE:  Also "Download[s] of the Week."

Thomas Bickel on Overruling Engle v. VitaleMichael Ramsey

In the Harvard Journal of Law and Public Policy Per Curium, Thomas H. Bickel (B.A. Brown '22), Engel Was Grievously Wrong and Should Be Overruled.  From the introduction: 

A jurisprudential shift is underway in the area of Establishment Clause law. The slow and painful death of the long derided “Lemon Test” is merely a symptom of the Supreme Court’s increasing adherence to text, history, and tradition. Against that backdrop, this essay will briefly overview this recent shift as it pertains to Establishment Clause doctrine to suggest that there now exists a viable roadmap to chip away at and revisit Engel v. Vitale. Then, after substantiating how this largely forgotten public prayer precedent is again relevant in light of this ongoing shift, this paper will elucidate why Engel was egregiously wrong and why it warrants being formally overruled at the earliest opportunity to do so.

Via Josh Blackman at Volokh Conspiracy, who has further thoughts on the significance of the court's recent decision in Kennedy v. Bremerton for previous Establishment Clause cases: Texas Will Test Whether Kennedy v. Bremerton Abrogated Engel v. Vitale, Stone v. Graham, and Wallace v. Jaffree.

New Book: "The Jury - A Very Short Introduction" by Renée Lettow LernerMichael Ramsey

Recently published, by Renée Lettow Lerner (George Washington),  The Jury: A Very Short Introduction (Oxford Univ. Press 2023).  Here is the book description form the publisher: 

From ancient Athens to modern Asia, cultures have wanted ordinary people involved in making legal decisions. This Very Short Introduction charts juries from antiquity through the English-speaking world and beyond to Europe, Latin America, Africa, and Asia. Today, juries have become a symbol of democracy and popular legitimacy.

But in English-speaking countries, jury trials are declining. Civil juries have been virtually abolished everywhere except the United States, and plea bargaining is taking the place of criminal jury trials. In this book, Renée Lettow Lerner describes the benefits and challenges of using juries, including jury nullification. She considers how innovations from non-English-speaking countries may be key to the survival of citizen participation in the legal system.

Along the way, the book tells how a small German state invented a way of using jurors that is now found around the world. And it reveals why some defendants preferred to be crushed to death by weights rather than convicted by a jury.

(Via Dna Ernst at Legal History Blog.)

Perry Dane: The Nagging in Our Ears and Original Public MeaningMichael Ramsey

Perry Dane (Rutgers Law School) has posted The Nagging in Our Ears and Original Public Meaning (Marquette Law Review, forthcoming) (61 pages) on SSRN.  Here is the abstract:

The debate over how to understand the meaning of legal texts once pitted intentionalism against a variety of other views united by the conviction that a legal enactment takes on a meaning not reducible to anybody’s mental state. Both these approaches are supported by powerful intuitions. This Article does not try to referee between them. Instead, it takes aim at a third set of views – theories of “original public meaning” – that in recent decades has upended the traditional debate and has now become gospel for the new majority on the United States Supreme Court.

The method of original public meaning has a distinct, deadly, bit of intractable incoherence: It is, uniquely, largely useless in interpreting the meaning of contemporaneous legal enactments. If we, today, are trying to figure out the meaning, not of a provision enacted years ago, but of a text enacted today or recently, then looking to original public meaning will usually be a circular, empty, effort. After all, we – the interpreters of a contemporaneous text – are the original public.

This hole in the fabric of original public meaning theory is roughly analogous to the chasm at the heart of variants of predictive legal realism. Just as defining the law as a prediction of what judges will do is of no help to judges themselves in deciding what the law is, defining the meaning of the law by reference to the views of the original public is of no help to the original public in deciding what the meaning of the law is.

That small hole ends up unraveling the entire fabric of original public meaning. If the original public cannot look to original public meaning to decide the meaning of a contemporaneous legal texts, it must have some other way to determine legal meanings. The original interpreters of older texts were readers, just like us. They had a way of reading contemporaneous texts, as do we. We can conclude that they applied their own method incorrectly. We can also decide that our way of reading – which continues to whisper in our ear even when we read older texts – is better suited to the task of understanding those texts.

Contraception and DobbsDavid Weisberg

In his much-commented-upon concurring opinion in Dobbs v. Jackson Women’s Health Organization, Justice Thomas asserts that the Court  “should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Although no other Justice joined in that concurrence, it continues to worry those who believe that the ability to obtain and use contraceptives protected by Griswold, like the right to abortion announced in Roe v. Wade and rejected in Dobbs, might disappear in the near future. 

The latest manifestation of worry is an article by Prof. Miranda McGowan, “The Democratic Deficit of Dobbs,” which has an abstract that ends with these ominous words:

The Court claimed that Dobbs does not portend a reversal of other fundamental rights cases. If true, that fact condemns Dobbs as a selective application of its supposed premise—which is to say as a political act of judicial hypocrisy. Dobbs’s methods put contraceptive access right on the chopping block.

I submit that, in the age of the internet, even if Griswold were overturned (which I think is wildly unlikely), the effect on access to contraceptives would be practically zero.

Let’s assume Griswold is overturned because Justice Thomas convinces four other Justices that substantive due process is nonsense.  State X then passes a law making it a crime for anyone (a) to manufacture any contraceptive device or medication in State X, (b) to prescribe or dispense any contraceptive device or medication in State X, (c) to possess or use any contraceptive device or medication in State X, or (d) to engage in sexual relations in State X with anyone who uses any contraceptive device or medication.  It is also safe to assume, I submit, that there will be other States, and other countries in the world, that pass no such law. 

What do people in State X who want to use contraceptives then do?  Obviously, they go onto the internet and order those products (which presumably have been manufactured outside of State X) from some provider located outside of State X.  They then receive those products via the U.S. mail or some delivery service operating in interstate commerce.  And they then use them when having sex.  What can State X do in response?  Essentially, nothing.  Why?  Because, even if the Constitution cannot properly be understood to support the concept of substantive due process, it does include the Commerce Clause.   

It’s true that Justice Scalia wrote, in his dissent in Comptroller of Treasury of Maryland v. Wynne, that the concept of a dormant Commerce Clause is “a judicial fraud.”  But the question decided affirmatively by the Court in Wynne involved very abstract issues of tax law, specifically: “Does the dormant Commerce Clause of the Constitution prohibit states from taxing all the income of their residents by mandating a credit for taxes paid related to income earned in other states?”

I think even Justice Scalia would have agreed that State X does not have the right to interfere directly with the physical flow of interstate commerce by trying to stop certain articles—none of which have been banned from interstate commerce by the federal government, and many of which have F.D.A. approval for use as contraceptives—from being transported into State X.  State X could not set up border control stations to stop and inspect trucks carrying packages into the State without violating the Commerce Clause.  And there can be no question that State X does not have the right, dormant Commerce Clause or no dormant Commerce Clause, to interfere with the normal, routine functioning of the U.S. mail. 

 

So, contraceptive materials will end up in the hands of just about anyone in State X who wants them.  When they are put to use, that presumably will occur in a private setting where no potential adverse witnesses are present.  Thus, State X will neither be able to prevent contraceptive materials from being acquired by people in the State, nor will it be able to prove that people used those materials in the State.  Sometimes, the sky doesn’t fall.         

 

Justifying the History in BruenMike Rappaport

A great deal of attention has been paid to the account of history in Justice Thomas’s opinion in Bruen.  What justifies, under an originalist approach, looking at the history (1) leading up to and following the 2^nd Amendment’s enactment and (2) leading up to and following the 14^th Amendment’s enactment?  One way to understand it is that the history in (1) explicates the 2^nd Amendment and the history in (2) explicates the 14^th Amendment.  But it is not clear why both periods need to be discussed.  The Court should just figure out which Amendment matters and then explore the history for that Amendment.

But there is a way where Bruen's discussion of the history makes more sense.  One way to understand applying the right to bear arms against the states is to view the Privileges or Immunities Clause as protecting the basic rights that citizens have enjoyed in free states in England and in America.  This way of viewing the Privileges or Immunities of Citizens of the United States derives from language in Corfield v. Coryell, which significantly influenced the enactors of the 14^th Amendment.  That language stated:   

The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate.

Under this view of the 14^th Amendment, those fundamental rights included many common law rights as well as the rights in the Bill of Rights – the latter, not because they are part of the Bill, but because those rights happened to be fundamental. 

The right to bear arms would then be a fundamental right.  And to understand the content of that right, one would need to examine it for the period it existed.  This would require an inquiry into its content in the free government of England, in the American colonies, and in the states from the time of independence until the enactment of the 14^th Amendment.  One would also want to look at the period shortly after the enactment of the 14^th Amendment for insight as to how the right was understood at the time of enactment.  

Thus, one can justify much of the scope of Justice Thomas’s historical inquiry by theorizing the right as one of the (unenumerated) fundamental rights that were protected by the 14^th Amendment.  The problem is that this view of the right being protected does not appear to be the one that the Court has taken in Bruen.