The Originalism Blog

Kevin Bendesky on Cruel PunishmentsMichael Ramsey

Kevin Bendesky (Harvard Law School JD '23) has posted ‘The Key-Stone to the Arch’: Unlocking Section 13’s Original Meaning (University of Pennsylvania Journal of Constitutional Law, Vol. 26, No. __, 2023) (53 pages) on SSRN.  Here is the abstract:

The Pennsylvania Supreme Court holds that Section 13 of the State’s Constitution, which prohibits all “cruel punishments,” is coextensive with the Eighth Amendment, which prohibits only “cruel and unusual punishments.” Rather than analyze the state provision independently, the court defers to the U.S. Supreme Court’s interpretation of the Eighth Amendment. This is because Pennsylvania history, says the court, does not provide evidence that the Commonwealth’s prohibition differs from the federal one. Without that historical basis, the court believes it is bound by federal precedent.

This is mistaken. History reveals that Pennsylvanians had a distinct original understanding of “cruelty.” The U.S. Supreme Court has said that the original meaning of the federal provision parroted English criminal prohibitions, permitted retributive justifications, and proscribed only pain superadded beyond death through methods left in the past. This understanding is irreconcilable with the original meaning of Section 13. The Commonwealth’s provision, by contrast, parroted Enlightenment criminal philosophy, permitted only deterrence and rehabilitative justifications, and prohibited any severity contemporary science deemed unnecessary for those ends. The historical record should provide, not prevent, a distinctly Pennsylvanian definition of cruelty.

This article provides that historical account. It reviews the influence of Montesquieu and Beccaria’s writings on the speeches, pamphlets, and debates of founding Pennsylvanians. It also traverses the text, legislative history, and early Pennsylvania Supreme Court interpretation of the first penal laws in the Independent State. This penal code, which circumscribed capital punishment and augured the age of the penitentiary, distilled the distinctly Pennsylvania conception of “cruelty” into law. This was the philosophy Pennsylvanians encapsulated in their prohibition on cruel punishments.

Section 13 jurisprudence should therefore build—independently—from the original meaning Pennsylvania’s history provides.

Professor Squitieri and NondelegationRob Natelson

In 2019, Julian Mortenson and Nicholas Bagley made public their widely-discussed article (formally published in 2021) in which they concluded that there was no Founding-era non-delegation doctrine. They found no bounds to the extent a Founding-era legislature could delegate its power, so long as the legislature did not permanently alienate that power.

In January 2020, I responded on this site. I noted some problems with their research and their conclusions. But I added that perhaps non-delegation advocates were misguided in seeking a single non-delegation principle for all of Congress’s powers. I wrote:

It is fundamental that the Constitution does not delegate to Congress “the legislative power.” Rather, it delegates about thirty discrete legislative powers . . . . Specific words and phrases define the scope of each of these powers. The framers were careful drafters, and most of these words and phrases were borrowed from contemporaneous legal or governmental practice. For example, to “regulate Commerce” was an Anglo-American legal phrase embracing the law merchant, protective tariffs, governance and facilitation of navigation, and certain related subjects. Similarly, the framers borrowed the phrase “establish Post Offices and post Roads” from British postal statutes. It encompassed building post offices and intercity roads, designating postal routes and tolls, hiring employees, enacting criminal penalties for misuse of the postal service—everything necessary and customary to develop a working postal system and an intercity highway system.

The extent to which each enumerated power authorized Congress to delegate to executive sub-agents depended on the constitutional words describing the power.

In 2021, Professor Chad Squitieri published a law review article reaching—independently, I assume—a similar conclusion. As Professor Squitiri wrote in his Abstract:

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress . . .

As I had, Professor Squitieri advocated that the extent of permissible delegation for each legislative power should be ascertained from the relevant text and surrounding circumstances.

We are indebted to Professor Squitieri for thus furthering the debate. I do, however, wish to address what I see as a shortcoming. That shortcoming is his use of the Necessary and Proper Clause as a sort of omnibus delegation vehicle for each enumerated power. He writes:

This Necessary and Proper Clause provides the text-based standard for determining how Congress can delegate its Article I, Section 8 powers. The key nondelegation question for the legislative powers enumerated in Article I, Section 8 is therefore as follows: Whether an objective reader in 1788 would have understood a particular delegation to be a “necessary and proper” means of “carrying” a particular Article I, Section 8 power “into execution.”

As some readers know, I concluded long ago that—contrary to prevailing modern orthodoxy— founding generation lawyers construing a document usually preferred the parties’ subjective understanding over the document’s objective meaning, for Qui haeret in litera, haeret in cortice. (pdf)  Because the Constitution was drafted to be construed by then-prevalent interpretive methods, I likewise think we should apply the ratifiers’ subjective understanding when available and coherent. But that is not the point I wish to make today.

In statements such as the one just quoted, Professor Squitieri effectively treats each legislative power as having two components: (1) a general description of the power and (2) the Necessary and Proper Clause authorization to legislate in that area.

I will admit that the framers sometimes drafted in that manner. In Article III, Section 2 they first listed the components of “the judicial Power” and afterwards formally granted those components. (I do not subscribe to the theory that the first sentence of Article III itself vests authority (pdf).) However, the first 17 clauses of Article I, Section 8 (and Congress’s other powers) are not merely recitals to be carried into effect by congressional action under the Necessary and Proper Clause.

The Nature of the Necessary and Proper Clause

In 2004, I published “The Agency Law Origins of the Necessary and Proper Clause” (pdf). Since then, my work has been supplemented and confirmed by a substantial amount of published research on the subject—not just by me, but also by Gary Lawson, Guy Seidman, and Geoff Miller. (See, for example, this book.)

Our underlying findings are pretty much consistent:

• During the Founding Era the term “necessary” in this context was a synonym for “incidental.”

• As several leading Founders pointed out, the Necessary and Proper Clause granted no additional authority to Congress. It simply told the reader that the doctrine of incidental authority, which usually inhered in enumerated-power documents, also applied to the Constitution. This distinguished the Constitution from the Articles of Confederation, which had explicitly excluded incidental authority.

• Incidental powers were those both (1) “less worthy” than those mentioned explicitly (“principal powers”) and (2) tied to their principals by custom or reasonable necessity.

• The meaning of “proper” is less certain. It appears to mean that congressional legislation exercising incidental powers must be consistent with then-understood duties of public trust. For example, regulating an incidental activity must be done for the bona fide purpose of governing an activity within Congress’s explicit authority to govern. It must not be a pretext to serve some unenumerated purpose.

Unfortunately, Professor Squitieri’s article shows no awareness of those research findings.

Application to Non-Delegation

Because the Necessary and Proper Clause is merely a rule of construction, the scope of each power the Constitution grants should be determined from the wording and ambient history of that power alone. There is no need to consult the Necessary and Proper Clause except as a reminder that Congress may regulate incidents in a good faith effort to regulate principals. In exercising the Commerce Power, for example, surely Congress may require labeling standards, even though labeling is technically production or packaging rather than “commerce.”

Assuming that Professor Squitieri and I are correct about the hypothesis we hold in common, we originalists have some work to do. To be sure, some of that work already has been done: An example, as I mentioned in my 2020 entry and elaborated here (pdf), is the scope of the power to “establish” post offices and post roads. The breadth of that scope (see above) suggests that the Congress’s ability to delegate in that area is limited—because the Constitution grants only to Congress, not to any other entity, the power to “establish.”

On the other hand, the enumerated power to “provide and maintain a Navy” contemplates Congress as playing principally a funding role, delegating extensively to executive-branch officers—a conclusion fortified by the Constitution’s designation of the President as commander-in-chief. (I address the Founding-era meaning of “provide” here (pdf).)

For other powers, however, the research has not yet been done. For example, to what extent does the “Power To lay and collect Taxes, Duties, Imposts and Excises” comprehend power to delegate that authority to the President? And does the answer differ according to the nature of the financial exaction?

In short, I believe Professor Squitieri is likely correct in his most important conclusion: The scope of permissible delegation must be determined from the text of each power and the surrounding context. But there is no need to insert the Necessary and Proper Clause into the equation, except as a useful reminder.

Kim Forde-Mazrui on Originalism and Affirmative Action

At the Hill, Kim Forde-Mazrui (Virginia): How originalism supports affirmative action.  From the introduction: 

If the court applies originalist analysis to the higher-education affirmative action cases currently before it, race-conscious admissions across the country should be upheld.

The originalist theory of constitutional interpretation holds that the 14th Amendment’s meaning was fixed by how people understood the amendment when it was ratified in 1868. Historical laws and practices before and following ratification is important evidence for originalists seeking such understanding.

And from later on: 

State colleges have used race preferences in admissions throughout American history. Indeed, until the second half of the 20th century, the great majority of Southern state colleges imposed admission quotas: 100 percent of admitted students were white (and, overwhelmingly, male). Such race-based admissions practices were prevalent when the 14th Amendment was ratified and persisted for nearly a century thereafter.

Moreover, the Reconstruction-era Congress, many of whose members drafted the 14th Amendment, apparently believed the amendment permitted states to use racial preferences in college admissions. In the decade following the amendment’s 1868 ratification, Congress enacted civil rights laws to explicitly prohibit race discrimination in several contexts, including property and contract rights, and access to public-serving businesses, such as hotels, restaurants, theaters and public carriages. But Congress did not prohibit race discrimination by states in higher education, including college admissions. In fact, during Reconstruction, Congress repeatedly considered and rejected proposals to prohibit race discrimination in college admissions as a condition for states to receive federal funds for higher education.

...

This historical evidence adds further support to Harvard’s and UNC’s arguments that the 14th Amendment did not require states to be blind to race. That the amendment’s original meaning appears to have permitted college-admission preferences for white people is disappointing. However, the uncontested, primary purpose of the 14th Amendment is equality for Black people, so the historical practice of race-conscious admissions in the 19th and 20th centuries certainly supports the permissibility of race-conscious admissions for Black people in the 21st century.

I don't think this argument is correct as an originalist approach or that the current Court will be persuaded by it.  But I do think it shows the problem of relying too narrowly on the history and tradition approach of Dobbs and Bruen.  If the Court reaches the constitutional issue in the UNC case some further elaboration may be needed.

Anita Krishnakumar: Textualism’s Fault LinesMichael Ramsey

Anita S. Krishnakumar (Georgetown University Law Center) has posted Textualism’s Fault Lines (102 pages) on SSRN. Here is the abstract:

It is by now axiomatic to note that textualism has won the statutory interpretation wars. But contrary to what textualists long have promised, the widespread embrace of textualism as an interpretive methodology has not resulted in any real clarity or predictability about the interpretive path—or even the specific interpretive tools—that courts will invoke in a particular case. Part of the reason for this lack of predictability is that textualism-in-practice often differs significantly from the approach that textualism-in-theory advertises; and part of the reason is that textualism-in-theory is sometimes in tension with itself. In light of textualism’s ascendance—and now dominance—on the modern Supreme Court, it is time for scholars and jurists to grapple with these theoretical tensions and points of divergence between textualist interpretive theory and practice.

This article provides the first empirical and doctrinal analysis of three central fault lines, or places where modern textualist interpretive practice diverges—sometimes sharply—from textualist interpretive theory. Based on 637 cases decided during the Roberts Court’s first fifteen-and-a-half terms, this article highlights three surprising textualist fault lines: (1) first, while textualism-in-theory seeks to limit the universe of acceptable interpretive resources upon which judges rely, textualist interpretive practice is decidedly pluralist, as a clear majority of the Court—including all of the Justices widely considered to be textualists—regularly references several interpretive tools that textualism-in-theory rejects; (2) second, while textualism-in-theory insists that statutory terms be given their date-of-enactment or “original public” meaning, textualism-in-practice regularly uses present-day sources to determine statutory meaning; and (3) third, while textualism-in-theory emphasizes the meaning that statutory terms have in everyday conversational speech, textualism-in-practice relies heavily on sophisticated legal doctrines and constructs. These findings hold true even if we focus exclusively on data from the Court’s most recent 2017-2020 terms, during which the Court’s composition has skewed lopsidedly textualist.

After chronicling these divergences between textualist theory and practice, the article considers and rejects the possibility that they may be attributed merely to faint-hearted judicial application of textualism and that they should be resolved through more disciplined adherence to textualist principles. Instead, the article suggests that textualist interpretive theory may actually be inherently contradictory in ways that give rise to these interpretive divergences; for example, textualism’s commitment to stability may be in tension with its commitment to predictability and fair notice. In the end, the article offers some suggestions for how textualist theory might evolve to both reconcile these internal contradictions and to better account for how textualism actually is practiced on the ground.

Via Larry Solum's Legal Theory Blog, where it is "Download of the Week" (last week, but I'm behind).

Haley Proctor: Legislative FactsMichael Ramsey

Haley Proctor (University of Missouri at Columbia - School of Law) has posted Legislative Facts (Notre Dame Law Review, Vol. 99, forthcoming) (69 pages) on SSRN  Here is the abstract:

Giving meaning to law can be a fact-intensive exercise. Sometimes it demands a dusty search for the common usage of a word in 1789; sometimes a green-eye-shaded scrutiny of figures showing the economic impact of a regulatory measure. As the factual nature of legal inquiry has become increasingly apparent over the past century, courts and commentators have fallen into the habit of labeling the facts behind the law “legislative facts.” Loosely, legislative facts are general facts courts rely upon to formulate law or policy, but that definition is as contested as it is vague. Most agree that legislative facts exist in some form or another, but few agree on what that form is, on who should find them, and how.

This Article seeks to account for and resolve that confusion. Theories of legislative fact focus on the role facts play in lawmaking. This Article proposes a different approach that situates facts within the adjudicatory process. The facts captured by the label “legislative fact” play two different roles in resolving parties’ disputes: sometimes they provide a premise for the rule of decision the court uses to resolve the dispute, and sometimes they assist the court in relating that rule of decision to the circumstances of the parties. Courts should distinguish between these roles when determining who should find the facts, and how. This approach results in sounder dispute resolution and sounder developments in the law, and it is more administrable than the current, undisciplined approach.

Why Madison’s 1800 Report is Irrelevant to the Constitutional Debate Over ImmigrationRob Natelson

A debate, held both on this site and on The Volokh Conspiracy, has erupted between Ilya Somin and Andrew Hyman over the extent to which the federal government and states may restrict immigration. Professor Somin denies that Congress has power to prevent immigration to persons from nations with which the United States is not at war; Andrew Hyman argues that Congress has that power under the Constitution’s Define and Punish Clause (Article I, Section 8, Clause 10).

To support his case, Professor Somin relies partly on an 1800 Virginia legislative report, “Proceedings of the Virginia Assembly, on the Answers of Sundry States.” The author was James Madison, and its purpose was to defend the famous 1798 Virginia Resolutions.

The Virginia Resolutions were critical responses to two laws Congress recently had passed as part of a four-law package. The Virginia Resolutions argued that the Alien Friends Act and Sedition Act were unconstitutional. However, the Resolutions had, in turn, encountered heavy fire from some other state legislatures. The Report of 1800 was Madison’s way of responding. Indeed, one reason he had secured election to the House of Delegates this late in his career was to shepherd this new statement through the legislature.

This is not the first time legal scholars have appealed to Madison’s 1800 Report to opine on the Constitution’s treatment of immigration (see, for example, this pdf). However, this post argues that reliance on the Report for that purpose is inconsistent with appropriate scholarly standards.

I so conclude for two reasons. The less important reason is that the Report actually does not address Congress’s power over immigration. The more important reason is that even if it did so, it would not be very reliable evidence.

In the service of full disclosure: My own research has persuaded me that the Constitution’s Define and Punish Clause surely grants Congress power to curb non-commercial immigration (pdf). There was little discussion of the precise issue during the ratification debates (although there was some), because America was seeking as many immigrants as possible. But there is other evidence: All the international law books familiar to Americans stated that sovereign control of borders was a component of the law of nations. Border control was discussed in treatises, or parts of treatises, devoted exclusively to international law and as a component of international law. These treatises included five titles frequently cited in the courts during the ratification era, and recommended to the Confederation Congress by a congressional committee of which Madison and two other framers were members.

Prof. Somin argues that border restrictions and their enforcement were merely part of the municipal law. Professor Somin is an outstanding legal scholar, but in this instance I do not believe his conclusion is tenable.

What’s Good About Madison’s Report

In his Report, Madison contended the federal government has only those powers the Constitution grants it. In other words, the federal government does not have an unstated reservoir of “inherent sovereign authority,” as claimed by Justices such as George Sutherland (pdf) and law professors such as John Mikhail (pdf). As Madison observed, during the ratification debates the Constitution’s advocates uniformly represented it as conveying only limited enumerated powers (pdf, pdf, pdf). And among those who said so was the very person who had invented the “implied sovereign authority” doctrine for the Articles of Confederation: James Wilson.

Thus, in arguing against the Alien Friends Act and the Sedition Act, Madison quite properly contended that the Constitution’s enumerated powers do not confer the authority those laws purported to exercise.

In his Report, Madison also affirmed, as he had affirmed elsewhere, that the Constitution derives its force from the ratification and must be construed as understood by the ratifiers. This observation was simply an application of the dominant Founding-era interpretive method applied to most documents—with the notable exception of real property conveyances (pdf).

These salutary aspects of the Report do not, however, render it appropriate evidence of the understanding of, or meaning to, the ratifiers. 

The Report’s Argument

Here are excerpts from the Report most relevant to the claim that Congress had no power over immigration. Italics are in the original. (Apology: As a stylist, Madison was no Gouverneur Morris.)

The next observation to be made, is, that much confusion and fallacy, have been thrown into the question, by blending the two cases of aliens, members of a hostile nation; and aliens, members of friendly nations. . . . With respect to alien enemies, no doubt has been intimated [in the Virginia Resolutions] as to the federal authority over them; the constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens, who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress, is denied to be constitutional . . . .

                                                                         * * * *

[I]t can never be admitted, that the removal of aliens, authorised by the act, is to be considered, not as punishment for an offence; but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country, where he may have formed the most tender of connections, where he may have vested his entire property, and acquired property of the real and permanent, as well as the moveable and temporary kind; where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for, and where he may have nearly compleated his probationary title to citizenship; if moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war . . . and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied.

                                                                         * * * *

It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorised to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.

The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.

A hasty reading of this passage might leave one with the impression that Madison was laying down the invariable rule that the federal government has authority to punish aliens from enemy nations but no authority to punish those from friendly nations; and that punishing the latter is solely a matter for the municipal—i.e., state—law.

A Closer Reading

The Alien Friends Act was primarily directed at deportation, and a closer reading of this passage shows Madison was discussing only deportation, not immigration per se. It is true, as Prof. Somin states, that the statute contained some minor restrictions on immigration. Significantly, however, Madison did not challenge those.

The passage further shows that Madison was criticizing the law for authorizing presidential deportation, not just of any aliens from friendly countries, but only of those in the United States legally. He assails deportation without due process from a country “into which [they have] been invited.”

“Alien friends,” Madison wrote, “except in the single case of public ministers, are under the municipal law.” In 18th century jurisprudence, this was so because an alien friend coming into the country legally entered into temporary “allegiance” to the receiving sovereign. By subjecting himself to the receiving sovereign’s laws, the alien friend became a temporary “subject” (subditus) of that sovereign—conditional only on the alien’s overriding obligation to his own sovereign. In return, the alien friend was entitled to the receiving sovereign’s protection.

A prominent example of submission to a sovereign’s laws triggering a duty of protection was Somerset v. Stewart, the 1772 case that effectively abolished slavery in England. James Somerset had been a slave in Virginia. But his arrival in England and submission to her laws rendered him (in the words of his legal counsel) “liable to all their penalties and consequently has a right to their protection” (pdf).

(Madison’s exception for “public ministers” reflected the rule that a diplomat on foreign territory was not in allegiance to the receiving sovereign. Wherever he trod became, as to him, a plot of his homeland.)

So far, so good: Alien friends were subject only to the municipal law. But what was an alien friend?

This term encompassed most visitors from friendly nations—but not all of them. A person from a friendly country might show himself hostile to the laws of the receiving nation and therefore not in allegiance to it. No allegiance, no protection.

An example of the latter situation was reported in Vaughan’s Case, 2 Salk. 635, 91 Eng. Rep. 535 (undated). This was a decision by Sir John Holt, one of England’s most highly regarded Chief Justices (served: 1689-1710), and reported by William Salkeld, one of the more highly-regarded case reporters.

Vaughn was a Dutchman at a time when the United Provinces of the Netherlands was in alliance with Great Britain. It therefore was claimed that he was a friendly alien. But he had allied himself with France, a nation with which Britain was at war. That made him an enemy alien, notwithstanding his nationality. Of such people, Justice Holt said, “[T]the French subjection makes them French subjects in respect of all other nations but their own.”

To put the principle more generally: An immigrant or foreign visitor from a friendly nation puts himself under the protection of the receiving sovereign—and therefore becomes entitled to the protection afforded an alien friend—by subjecting himself to the receiving sovereign’s laws. He is the kind of person Madison describes as coming into a country

into which he has been invited, as the asylum most auspicious to his happiness . . . where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for, and where he may have nearly compleated his probationary title to citizenship . . . .

By contrast, a person seeking to enter the country illegally (such as, but not limited to, an invader—a word, incidentally, whose Founding-era dictionary meaning is broad enough to include much of what is now going on at the southern border) does not subject himself to that country’s laws. He is not, as Madison was using the term, a “friendly alien.”

The More Serious Objections

Readers who have spent much time with academics in other disciplines may be aware that, as a general proposition, legal scholarship is not highly regarded. (The sneer about “law office legal history” comes to mind.) Our legal training, coupled with the fact that most of us have no training in historical methods, tempts us to prefer a superficially appealing argument to a true one. All too often, we yield to the temptation by cherry-picking relevant evidence—or wandering into distant fields in search of other cherries to pick.

A common symptom of this, in my view, is the marshaling of sources arising well after the Constitution’s ratification to “prove” ratification-era meaning or understanding. Historians sometimes call this “reading history backwards.” They know it more formally as “anachronism.”

There are all sorts of reasons why post-ratification statements are generally useless for showing ratification-era understanding. Here are some:

*          Memories fade.

*          Ratification-era participants who might have contradicted those statements often were not around to do so: When the 1800 Report was published, such leading participants in the constitutional debates as Benjamin Franklin, Patrick Henry, George Mason, Roger Sherman, Melancton Smith, and George Washington were all dead. John Rutledge was still alive, but suffering from mental illness. Rufus King was abroad. And so forth.

*          Incentives change. The same person who, when presenting the Constitution to the public in 1788, had an incentive to characterize the federal government’s powers one way, often had an incentive to characterize them differently later on. By way of illustration, the difference is great between Alexander Hamilton’s constitutional arguments in Federalist No. 16 (prior to ratification) and in his Report on Manufactures (after ratification).

*          Alliances change. In particular, they changed dramatically after the first session of the First Federal Congress, as the case of Madison illustrates: Prior to that time, he was allied with Hamilton. After that time, he was allied with Thomas Jefferson.

*          Context and language change.

Using Madison’s 1800 Report to show the understanding of the ratifiers a decade earlier is subject to all of those objections.

Of course, it might be contended that under the rule of “practical construction,” one could use the Report to “liquidate” the Constitution’s true meaning. But the rule of practical construction requires both an initial ambiguity and a uniform subsequent interpretation. Even if the former were present (and in view of the evidence on the scope of the Define and Punish Clause, I don’t think it is), the latter is not: Far from expressing a universal view, the Report was a highly partisan production whose conclusions on the Alien Friends Act were opposed by some other Founders. And even if the Report could be read as denying a congressional power over immigration, it would be inconsistent with long-standing practice.

The Report of 1800 confirms many earlier public representations about the Constitution as a document conveying only those powers enumerated and their incidents. It also applies the then-prevailing interpretive technique to the instrument. Further, it is evidence of Madison’s constitutional views at the time, as well as those of a majority of the Virginia legislature.

But it is not useful evidence of the Constitution’s treatment of immigration.

Seth Barrett Tillman & Josh Blackman: Offices and Officers of the Constitution, Part IVMichael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth - Faculty of Law) & Josh Blackman (South Texas College of Law Houston) have posted Offices and Officers of the Constitution, Part IV: The 'Office . . . under the United States' Drafting Convention (62(4) S. Tex. L. Rev. 455–532 (forthcoming 2023) (78 pages) on SSRN.  Here is the abstract:

This Article is the fourth installment of a planned ten-part series that provides the first comprehensive examination of the offices and officers of the Constitution. The first installment introduced the series. The second installment identified four approaches to understand the Constitution’s divergent “office”- and “officer”-language. The third installment analyzed the phrase “Officers of the United States,” which is used in the Appointments Clause, the Impeachment Clause, the Commissions Clause, and the Oath or Affirmation Clause. This fourth installment will trace the history of the “Office . . . under the United States” drafting convention.

This Article proceeds in eight sections. Section I introduces the British drafting convention: “Office under the Crown.” For the last three centuries, this phrase has referred to appointed positions. And, in our view, this English and British legal tradition crossed the Atlantic—ultimately becoming part of a wider Anglo-American legal tradition. Section II considers the use of the “Office . . . under” drafting convention in the Articles of Confederation, which was ratified in 1781. Section III turns to the four clauses in the Constitution that use the phrase “Office . . . under the United States,” albeit with some variations: the Elector Incompatibility Clause, the Impeachment Disqualification Clause, the Incompatibility Clause, and the Foreign Emoluments Clause. In our view, the phrase “Office . . . under the United States” refers to appointed positions in the Executive and Judicial Branches, as well as non-apex appointed positions in the Legislative Branch.

Section IV analyzes several reports prepared during President Washington’s administration by the Treasury Department under its first Secretary of the Treasury, Alexander Hamilton. These documents support our position: the British “Office . . . under” drafting convention, which was used to distinguish between appointed and elected positions, had been adopted by Hamilton, a framer, and some of his contemporaries. Section V reviews an anti-bribery statute enacted by the first Congress. This 1790 statute, and other similar early federal statutes, provide further support for our position that the First Congress and early congresses adhered to the British “Office under” drafting convention. Section VI considers how the phrase “Office under the United States” was used during the American Civil War. At this time, more than seven decades after the framing, Hamilton’s understanding of the “Office . . . under” drafting convention, as well as the documents he and his department had drafted, were still remembered and remained influential. Section VII surveys other nineteenth-century commentators who recognized the “Office . . . under” drafting convention, including Joseph Story. Section VIII revisits an 1809 state legislative debate concerning the 1776 North Carolina Constitution. Some participants in that debate, including a future state supreme court justice, recognized that the state constitution’s “office”-language distinguished between appointed and elected positions.

These eight parts support our position: in the Anglo-American legal tradition, the phrase “Office under the . . .” was, and remains, a commonly-used drafting convention that refers to appointed officers. This phrase does not refer to elected officials.

Part III of this series, also recently posted on SSRN, is noted here.

Programming Note: Yet Another Blog HolidayMichael Ramsey

I will be on blog hiatus for about a week as part of my sabbatical leave.  Hope nothing interesting happens.

Is the National Popular Vote Compact Unconstitutional? (Again)Michael Ramsey

At PowerLine, UCLA law emeritus professor Dan Lowenstein, in a guest comment, argues that the proposed National Popular Vote Compact is unconstitutional, here.  From the core of the argument: 

A close reading of the constitutional language makes evident that, as the first clause states, the appointment of electors must be by the state.  The power granted to the legislature is not to determine any method whatever for selecting the electors, but to determine a method whereby “the state” shall appoint electors.  The appointment must be by the state.

Of course, the state is not a human being, and therefore cannot itself appoint anyone or make any other decision.  The state must act through someone who can speak as the state.  Most obviously in a democracy, the voters of the state may speak as the state.  In fact, at present and for most of our country’s history, every state legislature has chosen popular election as the method for appointing electors.  As is well-known, however, in the early decades of the Republic, in many states the legislature itself appointed the electors.  This was proper, because the legislature is elected by the people of the state, and therefore may be said to speak as the state.

To the best of my knowledge, election by the voters and selection by the legislature are the only means of appointment that have ever been used.  Those also appear to be the only two methods that were contemplated by the framers of the Constitution.  Would any other method be consistent with the language of Article II?  Probably selection by the governor would be permissible, because the governor, like the legislature, is selected by the state’s voters.  Although it begins to get a little tenuous, probably another statewide official, such as the attorney general or the secretary of state, could appoint the electors.  And perhaps two or more such officials acting collectively.  More tenuously yet would be selection by the members of the state Supreme Court, since their appointment too can be traced back to the state’s voters.  (I am not suggesting that any of these methods would make any sense as a matter of policy, but only that they might come within the Constitution’s language.)  It would also probably be possible for the people or the legislature to choose delegates to a convention that would select the electors.

That about exhausts the possibilities that are or might be permissible under the Constitution’s language.  The selection could not be delegated to a limited portion of the state’s voters or a group selected by such a limited portion.  For example, the Illinois legislature could not decide that electors should be selected only by the voters of Chicago or only by voters outside Chicago.  Or by the City Council of Chicago.  Because a portion of the state is not the state, and a portion of the state cannot plausibly be regarded as speaking as the state.  Even more obviously, the appointment of electors may not be delegated to people who have no connection with the state.  Thus, the legislature could not determine that the state’s electors should be appointed by the King of England or by the Pope or by the United Nations General Assembly.  By precisely the same principle that would bar such methods, the appointment power may not be delegated to the voters of other states.

Thanks to Andrew Hyman for the pointer.  Andrew independently made a similar argument on this blog a while back: Let’s Not Overthink the National Popular Vote Compact Which is Clever but Cannot Work.  An excerpt:

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.

I also think the National Popular Vote Compact is unconstitutional, at least absent the consent of Congress, under the agreement or compact clause of Article I, Section 10, para. 3, as argued by Michael Morley (and endorsed by me) here.  My thoughts from that post:

The threshold originalist objection [to the NPVC] is that Article I, Section 10 says that "no State shall, without the Consent of Congress ... enter into any Agreement or Compact with another State."  Modern law has watered down that clause somewhat in nonoriginalist ways (though not, in my view, enough to validate the National Popular Vote Compact); but for originalists (or even just textualists) the clause seems unavoidably conclusive.  Still, it's worth thinking about whether the Compact would be unconstitutional even if Congress approved it.

One further objection might be that the Compact, despite its name, is actually a treaty.  A different clause of Article I, Section 10 says that "No State shall enter into any Treaty" (presumably even with Congress' consent).  Though the Constitution thus recognizes a difference between treaties on one hand and agreements or compacts on the other, it is unhelpful on the difference.  I made some effort to work out the originalist difference in my long-ago article on executive agreements (where the issue also comes up) but that effort was not terribly satisfactory.

But, I would add, Congress isn't likely to approve the NPVC so the treaty issue seems academic.  And, as Andrew Hyman points out, if he and Professor Lowenstein are right, the compact clause argument is academic as well, since a compact (like a treaty) obviously can't violate the Constitution.

Mark Moller & Lawrence Solum: The Article III "Party" and the Originalist Case against Corporate Diversity JurisdictionMichael Ramsey

Mark Moller (DePaul University - College of Law) & Lawrence B. Solum (University of Virginia School of Law) have posted The Article III "Party" and the Originalist Case against Corporate Diversity Jurisdiction (William & Mary Law Review, Vol. 64, No. 5, 2023) (101 pages) on SSRN.  here is the abstract:

Federal courts control an outsize share of big-ticket corporate litigation. And that control rests, to a significant degree, on the Supreme Court’s extension of Article III’s Diversity of Citizenship Clause to corporations. Yet, critics have questioned the constitutionality of corporate diversity jurisdiction from the beginning.

In this article and a previous one, we develop the first sustained originalist critique of corporate diversity jurisdiction.

Our previous article demonstrated that corporations are not “citizens” given the original meaning of that word. But we noted this finding alone doesn’t sink general corporate diversity jurisdiction. The ranks of corporate shareholders include many undoubted “citizens.” And so corporate litigants might preserve their access to diversity jurisdiction if that jurisdiction can vest through diverse shareholder citizenship.

In this article, we consider whether corporations can indeed preserve access to diversity jurisdiction via this route. We conclude they cannot. From an originalist perspective, shareholders are not parties to Article III “controversies” that proceed in the corporate name. In such controversies, shareholder citizenship cannot establish diversity jurisdiction.

The result of our analysis is that corporations are not citizens, and they normally can’t use shareholder citizenship to access diversity jurisdiction either. It follows that general corporate diversity jurisdiction is not authorized by the constitutional text.