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22 posts from June 2023


Jurisdiction and Residence in the Citizenship Clause
Andrew Hyman

Regarding this Originalism Blog post from Wednesday: People who doubt constitutional birthright citizenship for illegal aliens (and/or legal aliens) often point to the word “jurisdiction” in the Citizenship Clause.  But there is another separate feature of the same Clause that points to the same conclusion.  The Tenth U.S. Circuit Court of Appeals recently and correctly said that a “textual consideration suggesting the Citizenship Clause’s exclusive application to state-born residents is its effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’”  And the phrase "state wherein they reside" in the Citizenship Clause has always been widely understood as referring to legal domicile rather than merely physical presence or temporary shelter. This was no accident.  Senator Jacob Howard said in 1866 that, "The word 'State' in the eleventh line is printed 'States.' It should be in the singular instead of the plural number….”  That is, a person can have no more than one domicile.  The Citizenship Clause could be read like this: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State [if any] wherein they reside.”  But the Tenth Circuit was right to doubt that kind of interpretation, and I don’t know of any canon of construction that would justify inserting the words “if any.”  The clause makes good sense without those two words.  This is also proof about how the word “jurisdiction” was used.  People claiming a broad meaning of the word “jurisdiction” in that amendment usually (and correctly) acknowledge that there was also a narrower meaning floating around in the 1860s.

Justice Thomas on Originalism and Affirmative Action
Michael Ramsey

Justice Thomas's concurring opinion in the affirmative action cases decided yesterday gives an extended originalist defense of the colorblind reading of the Fourteenth Amendment.  From the introduction: 

In the 1860s, Congress proposed and the States ratified the Thirteenth and Fourteenth Amendments. And, with the authority conferred by these Amendments, Congress passed two landmark Civil Rights Acts. Throughout the debates on each of these measures, their proponents repeatedly affirmed their view of equal citizenship and the racial equality that flows from it. In fact, they held this principle so deeply that their crowning accomplishment—the Fourteenth Amendment—ensures racial equality with no textual reference to race whatsoever. The history of these measures’ enactment renders their motivating principle as clear as their text: All citizens of the United States, regardless of skin color, are equal before the law.

I do not contend that all of the individuals who put forth and ratified the Fourteenth Amendment universally believed this to be true. Some Members of the proposing Congress, for example, opposed the Amendment. And, the historical record—particularly with respect to the debates on ratification in the States—is sparse. Nonetheless, substantial evidence suggests that the Fourteenth Amendment was passed to “establis[h] the broad constitutional principle of full and complete equality of all persons under the law,” forbidding “all legal distinctions based on race or color.” Supp. Brief for United States on Reargument in Brown v. Board of Education, O. T. 1953, No. 1 etc., p. 115 (U. S. Brown Reargument Brief).

This was Justice Harlan’s view in his lone dissent in Plessy, where he observed that “[o]ur Constitution is colorblind.” 163 U. S., at 559. ...

The opinion continues with extensive discussion of the drafting history of the Fourteenth Amendment and of the Civil Rights Acts of 1866 and 1875.

Justice Thomas then addresses a common counterargument:

Despite the extensive evidence favoring the colorblind view, as detailed above, it appears increasingly in vogue to embrace an “antisubordination” view of the Fourteenth Amendment: that the Amendment forbids only laws that hurt, but not help, blacks. Such a theory lacks any basis in the original meaning of the Fourteenth Amendment. Respondents cite a smattering of federal and state statutes passed during the years surrounding the ratification of the Fourteenth Amendment. And, JUSTICE SOTOMAYOR’s dissent argues that several of these statutes evidence the ratifiers’ understanding that the Equal Protection Clause “permits consideration of race to achieve its goal.” Post, at 6. Upon examination, however, it is clear that these statutes are fully consistent with the colorblind view.

The opinion discusses the key statutes, with frequent citations to my colleague and co-blogger Mike Rappaport's article Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71 (2013).

And in conclusion on this point:

Most importantly, however, there was a wide range of federal and state statutes enacted at the time of the Fourteenth Amendment’s adoption and during the period thereafter that explicitly sought to discriminate against blacks on the basis of race or a proxy for race. See Rappaport 113–115. These laws, hallmarks of the race-conscious Jim Crow era, are precisely the sort of enactments that the Framers of the Fourteenth Amendment sought to eradicate. Yet, proponents of an antisubordination view necessarily do not take those laws as evidence of the Fourteenth Amendment’s true meaning. And rightly so. Neither those laws, nor a small number of laws that appear to target blacks for preferred treatment, displace the equality vision reflected in the history of the Fourteenth Amendment’s enactment. This is particularly true in light of the clear equality requirements present in the Fourteenth Amendment’s text. See New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. ___, ___–___ (2022) (slip op., at 26–27) (noting that text controls over inconsistent postratification history).

(Also with citations to leading originalist scholars including Akhil Amar, Randy Barnett, Evan Bernick, John Harrison, Kurt Lash, Michael McConnell, Ryan Williams, and I'm sure I forgot a few.)

It's a strong response to those who have said (and will soon be saying again) that the colorblindness standard has no basis in originalist materials.  I continue to think (see this recent post) that originalism theory needs to do more to develop the relationship between textual meaning and post-ratification history.  It's surely true, as Thomas says, that "text controls over inconsistent post-ratification history" -- sometimes.  But post-ratification history is also indicative of textual meaning -- sometimes.  Thomas mostly avoids developing this relationship because he finds (relying on Professor Rappaport) that the post-ratification history mostly doesn't support raced-based preferences for non-whites.  And he assumes (in the paragraph quoted above) that post-ratification laws "that explicitly sought to discriminate against blacks on the basis of race or a proxy for race" aren't indicative of the Amendment's meaning.  That's surely right, but it may be more difficult to explain why those laws aren't, but other post-ratification laws might be.

Leaving aside the foregoing concern, I think Dobbs, Bruen, and Thomas' concurrence taken together  begin to sketch a methodological outline: (1) develop a presumptive meaning of the text, using the text itself, and pre-ratification, drafting, and ratification materials; then (2) look at post-ratification practice to see if it points to a different meaning or to exceptions to the text's general rule, depending on the clarity of the text in step (1) and the clarity of the post-ratification practice.


Joel Alicea on Originalism and Natural Law
Michael Ramsey

At National Review, J. Joel Alicea: Anchoring Originalism (reviewing Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, by Hadley Arkes (Regnery Gateway 2023)).  From the introduction: 

Is originalism a morally empty jurisprudence? For decades, various scholars working within the natural-law tradition have argued that the answer is “yes.” To these scholars, because originalism purports to resolve constitutional disputes based on an analysis of the Constitution’s text and history, it implausibly attempts to prescind from making moral judgments or — worse — presupposes a form of moral relativism. Now, Amherst professor emeritus Hadley Arkes — one of the long-standing champions of this critique of originalism — has brought forth an elegantly written book to make the case against originalism and in favor of what he sees as an approach to constitutional adjudication that is more consistent with the natural law.

Mere Natural Law has all of Arkes’s warmth and charm, and he delivers his criticisms with respect for those with whom he disagrees. But these criticisms are mistaken. His critique of originalism proceeds from an incomplete description of the natural-law tradition, overlooks important distinctions and counter-arguments, and, as a result, misapprehends the implications of the natural law for cases such as Dobbs v. Jackson Women’s Health Organization, the Supreme Court’s 2022 decision overruling Roe v. Wade, and Planned Parenthood v. Casey.

And from later on, as to the central point of disagreement:

This brings us to Arkes’s second argument: Judges should rely on substantive moral principles drawn from the natural law in adjudicating constitutional disputes, since to do otherwise presupposes a form of moral relativism. He asserts that originalists have lost the conviction “that there really [are] genuine moral truths accessible to reason,” such that Dobbs, for example, rests on the assumption that “there is no truth on this matter [of abortion] for judges to declare.” But it is not true that originalism — because it purports to adjudicate cases based on text and history — presupposes moral relativism.

From the natural-law perspective, originalism rests on the notion that political authority exists solely to secure the political common good of a society. Because every person in society has an obligation to seek the common good (since it is essential to their own good), and because political authority is the means by which they can secure it, the people of a society are vested with political authority. When the people constitute a government, they transmit a portion of their authority to that government for the sake of the common good, reserving to themselves the power to alter or abolish the government. Because the natural law does not require any particular form of government or allocation of power — even if it may preclude some — the people’s authoritative decisions about those questions take on moral significance. To undermine the allocation of power set by the people is to undermine the people’s legitimate political authority, and that necessarily harms the common good, since the people’s legitimate authority is essential to securing the common good. The only way for public officials to preserve this legitimate authority is to understand the people’s decisions as the people themselves understood those decisions. Originalism rests, at bottom, on our moral obligation to secure the common good and the attendant obligation to preserve legitimate political authority.

Arkes at no point considers any of the natural-law arguments for originalism, even though scholars have offered many (such as the one outlined above). Perhaps the reason he does not do so is that he — remarkably — never discusses the traditional natural-law definition of law as framed by Thomas Aquinas: “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.” That definition is not a matter of linguistic practice; it is a substantive definition of what a law ought to be, given law’s moral purpose. Arkes’s omission of Aquinas’s definition is consistent with his often-idiosyncratic understanding of the natural law, one in which principles of reason are conflated with principles of morality, foundational Thomistic concepts are overlooked, and figures with varying degrees of proximity to the natural-law tradition (e.g., Kant, Lincoln, and assorted Supreme Court justices) are brought together.

Had Arkes focused on Aquinas’s definition of law, he would have been forced to ask: Who has care of the community in the United States? That is, who is the legitimate lawmaker in the United States? The answer — as deduced from the natural-law tradition’s teaching on the nature of political authority — is the people, the same people who, the Preamble declares, “ordain[ed] and establish[ed]” our Constitution. Once we understand this, the judicial obligation to obey the Constitution as the people understood it becomes clear — as does the moral force undergirding Dobbs.

Related: As noted earlier, John McGinnis also has a review of Professor Arkes' book from an originalist perspective.


Originalism and Birthright Citizenship (Yet Again)
Michael Ramsey

At PJ Media, Athena Thorne: DeSantis and Trump Both Vow to End Birthright Citizenship. Can They Do That? (via Instapundit).  Quoting a DeSantis announcement from Monday:

We will take action to end the idea that the children of illegal aliens are entitled to birthright citizenship if they are born in the United States. Dangling the prize of citizenship to the future offspring of illegal immigrants is a major driver of illegal migration. It is also inconsistent with the original understanding of 14th Amendment, and we will force the courts and Congress to finally address this failed policy.

The article continues:

Proponents of handing out U.S. citizenship to everyone born on American soil, no matter the circumstances, point to the first sentence of the 14th Amendment as their justification. It reads, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.” They gloss over the phrase, “and subject to the jurisdiction thereof.”

“Oh,” they say, “because the baby is in the U.S., he is subject to U.S. jurisdiction — the baby needs to follow the law like anyone else, foreign or citizen.” Thus, by virtue of existing on U.S. soil, the baby automatically fulfills the requirements for citizenship.

Except, then, why did the framers insert the phrase in the first place? Why not just say, “You’re born here, you’re a citizen”?

As it happens, I have an answer to that question (from my article Originalism and Birthright Citizenship, pp. 441-451). The Fourteenth Amendment's "subject to the jurisdiction" language preserved two prior exceptions to the nineteenth-century common law of citizenship based on place of birth (jus soli).  First, it was a longstanding rule that children of foreign diplomats, even if born in the U.S., were not U.S. citizens. The "subject to the jurisdiction" requirement maintained this rule because, under international law, diplomats were immune from prosecution in the country to which they were posted to protect them from retaliation and harassment.  The Amendment's drafters specifically discussed the jurisdiction requirement as adopted to exclude the children of diplomats.

Second, the"subject to the jurisdiction" requirement maintained the prior rule that Native Americans living under tribal authority were not U.S. citizens, even though born in the United States. Again, the Amendment's drafters specifically discussed this consequence of the jurisdiction requirement.  Their understanding was that tribal Native Americans were not subject to U.S. jurisdiction, either because the U.S. had relinquished it by treaty, or (as to tribes in the unsettled West) the U.S. had no practical enforcement power.  (The citizenship status of Native Americans was later changed by statute.)

In contrast, pre-Amendment nineteenth-century cases recognized that temporary visitors, though retaining their allegiance to a foreign sovereign, nonetheless were subject to the jurisdiction of the United States while present in the United States.  Chief Justice Marshall gave a good explanation distinguishing between diplomats and temporary visitors in The Schooner Exchange v. McFaddon (p. 144).  The children of temporary visitors born here were U.S. citizens (for example, in Lynch v. Clarke from 1844).  So the Amendment's "subject to the jurisdiction" requirement includes people subject to U.S. jurisdiction due to presence in the U.S., even if they are also subject to jurisdiction elsewhere.


Josh Blackman on Overbreadth and U.S. v. Hansen
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Start The Death Watch For The Overbreadth Doctrine.  From the introduction:

On Friday, the Supreme Court decided United States v. Hansen. In this case, the defendant promised aliens that they could obtain citizenship through "adult adoption." In the process, the defendant induced the aliens to stay in the country illegally. Hansen was convicted of violating a federal statute that forbids "encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such [activity] is or will be in violation of law." On appeal, Hansen argued that this statute violated the Free Speech Clause of the First Amendment. To be sure, Hansen's own conduct was not protected speech. Rather, Hansen asserted that the entire statute was "invalid" under the so-called overbreadth doctrine.


This doctrine, which was developed by (you guessed it) the Warren Court, never quite fit into constitutional law. All the usual rules of standing are thrown out the window, and a defendant can be acquitted even if his own conduct is unprotected by the First Amendment. Civil rights litigants often rely on the overbreadth doctrine, which allows them to challenge statutes on their face, even if they are not subject to a present-day injury. The 3D-printed gun litigation, which I've been involved with for some time, has invoked the overbreadth doctrine.

But I've long suspected that the overbreadth doctrine was on borrowed time. ...

As Professor Blackman explains, Justice Barrett's majority opinion avoided the issue by reading the statute narrowly -- but with some critical comments about the overbreadth doctrine along the way.

(Aside: The majority opinion vindicates the opinion dissenting from denial of rehearing en banc by originalist-oriented Ninth Circuit Judge Patrick Bumatay.)

Justice Thomas concurred with some even harsher comments:

I join the Court’s opinion in full. I write separately to emphasize how far afield the facial overbreadth doctrine has carried the Judiciary from its constitutional role. The facial overbreadth doctrine “purports to grant federal courts the power to invalidate a law” that is constitutional as applied to the party before it “‘if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’” Americans for Prosperity Foundation v. Bonta, 594 U. S. ___, ___ (2021) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 2) (quoting United States v. Sineneng Smith, 590 U. S. ___, ___ (2020) (THOMAS, J., concurring) (slip op., at 1)). As I have explained, this doctrine “lacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges,” and distorts the judicial role. Id., at ___ (slip op., at 9).

Justice Jackson defended overbreadth in dissent (joined by Justices Kagan and Sotomayor), but only briefly,  on policy grounds:

Absent overbreadth doctrine, “the contours of regulation[s]” that impinge on the freedom of
speech “would have to be hammered out case by case—and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.” Id., at 487. 

Professor Blackman concludes:

In any event, I think it is prudent to start the death watch for the overbeadth doctrine. I'm not sure which vehicle will squarely present the question of whether overbreadth should be abandoned. The federal government won't seek that remedy. Perhaps a conservative state might call for precedent to be reversed in a challenge to a state law on speech grounds. Then again, the overbreadth doctrine seems to have standing problems. And courts can always raise jurisdiction sua sponte. That could be one vehicle to revisit the doctrine, in an appropriate case.


Rob Natelson on Haaland v. Brackeen
Michael Ramsey

At the Federalist Society Blog, Rob Natelson: The Supreme Court’s Confused Decision in Haaland v. Brackeen.  From the introduction: 

On June 15, the Supreme Court issued Haaland v. Brackeen. Among other issues, the Court addressed the scope of the Constitution’s Commerce Clause. Specifically, it upheld the federal Indian Child Welfare Act (ICWA) as within Congress’ power to “regulate Commerce . . . with the Indian Tribes.”

The Commerce Clause part of the decision is a mess. There is no more polite way to describe it.

On the majority opinion:

Justice Amy Coney Barrett wrote the Court’s majority opinion. There are three contradictions at the core of the opinion, which make it unusually incoherent for the normally careful Justice.

First: She admitted that any congressional power “must derive from the Constitution, not the atmosphere,” because “Article I gives Congress a series of enumerated powers, not a series of blank checks.” But she then found congressional authority in sources outside the Constitution, including “pre-constitutional powers” and a “trust relationship.”

Second: She claimed that Congress’s Indian power is “plenary,” a word that means “absolute.” But then she said that the Indian affairs power “is not absolute.”

Third: She wrote that Congress’s authority under the Indian Commerce Clause is not absolute because it has boundaries. But then she expanded those boundaries beyond the orbit of the planet Saturn: “Congress’s power under the Indian Commerce Clause encompasses not only trade but also ‘Indian affairs.’”

Recall that giving Congress unlimited “Indian affairs” authority was precisely what the framers rejected. Instead, they gave targeted powers to Congress, the President, and the Senate—and left the rest to the states.


At some level, I think Justice Barrett understood the weaknesses in her argument. This is because her principal reliance was on case precedents rather than on independent reasoning. But these precedents aren’t worth much as constitutional analysis. In his dissent, Justice Clarence Thomas accurately described them as “judicial ipse dixit.” In other words, they merely pronounce, “It’s so because we say so.”

Tellingly, Justice Barrett never actually ruled that the ICWA is constitutional. She wrote that the plaintiffs had not proved it is unconstitutional and “We therefore decline to disturb the Fifth Circuit’s conclusion.”

And on Justice Gorsuch's concurrence:

I found Justice Neil Gorsuch’s concurrence even more disappointing, because I expected much more from this brilliant jurist.

The first third of his opinion was consumed by a list of prior injustices—as if shame were a valid constitutional argument. ...

He like Justice Thomas' dissent though.

(Thanks to Andrew Hyman for the pointer.)


Eric Segall on Justice Thomas on Qui Tam Suits (With my Thoughts)
Michael Ramsey

In United States ex rel Polansky v. Executive Health Resources, decided by the Supreme Court last week, Justice Thomas concurred, questioning the constitutionality of qui tam suits (in which a private party sues on behalf of the United States) on originalist grounds.  He argued:

The potential inconsistency of qui tam suits with Article II has been noticed for decades. The primary counterargument has emphasized the long historical pedigree of qui tam suits, including the fact that the First Congress passed a handful of qui tam statutes... “Standing alone,” however, “historical patterns cannot justify contemporary violations of constitutional guarantees” [quoting Marsh v. Chambers], even when the practice in question “covers our entire national existence and indeed predates it,” [quoting Walz v. Tax Comm’n.] Nor is enactment by the First Congress a guarantee of a statute’s constitutionality. [Citing Marbury]. Finally, we should be especially careful not to overread the early history of federal qui tam statutes given that the Constitution’s creation of a separate Executive Branch coequal to the Legislature was a structural departure from the English system of parliamentary supremacy....  In short, there is good reason to suspect that Article II does not permit private relators to represent the United States’ interests in FCA suits.

At Dorf on Law, Eric Segall comments (harshly):

Thomas argues in this paragraph that a practice that existed at and before the founding, has continued to exist for centuries, and has never been struck down by the Court, might now be unconstitutional. Why? Because Thomas accepts a strong version of the unitary executive theory which suggests that only the President can bring suits on behalf of the United States. But nothing in Article II says that and, as noted above, such suits have been around since the first Congress. So the idea that qui tam suits are unconstitutional is not supported by text, history, or precedent. It is supported only by Thomas's policy arguments surrounding the unitary executive theory.

I think it's wrong to say that Thomas' (tentative) position isn't supported by text.  Article II says the executive power (as relevant here, the power to enforce the law) is vested in the President, and the False Claims Act, in authorizing qui tam suits, arguably vests part of the executive power in the private parties authorized to sue on behalf of the United States.  But Professor Segall is right about the history.  And originalists, including Justice Thomas, often give substantial weight to immediate post-ratification practice in finding original meaning. Here's Justice Scalia, joined by Justice Thomas, dissenting in McCreary County v. ACLU of Kentucky:

It is no answer . . . to say that the understanding that these official and quasi-official actions reflect was not “enshrined in the Constitution’s text.” The Establishment Clause . . . was enshrined in the Constitution’s text, and these official actions show what it meant. There were doubtless some who thought it should have a broader meaning, but those views were plainly rejected. . . . What is more probative of the meaning of the Establishment Clause than the actions of the very Congress that proposed it, and of the first President charged with observing it?

Another example is Financial Oversight and Management Board For Puerto Rico v. Aurelius Investment, LLC, in which Thomas, concurring in the judgment, relied practice dating to the immediate post-ratification period to defend appointment of territorial officers contrary to the appointments clause.

Nonetheless, it's the original meaning and not the practice that controls, practice can't change the meaning, and especially when the congressional practice enhances Congress or diminishes another branch, it may not be reliable as an indicator of meaning.  (See my further thoughts here.)  So I don't think Justice Thomas is as far out of line methodologically as Professor Segall does.  There may be situations where the text should override early practice.  The challenge for originalists is how to decide when the text is clear enough to do so.  Without a well-developed methodology on this point, there's a temptation to choose text or early practice depending on which is more convenient for a preferred solution (or at least to give that impression to people like Professor Segall).  Perhaps a future qui tam case will point the way.


John McGinnis on Hadley Arkes on Natural Law and Originalism
Michael Ramsey

At Law & Liberty, John McGinnis: A Dialogue Between Originalism and Natural Law? (reviewing Hadley Arkes, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution (Simon & Schuster 2023)).  From the introduction: 

Hadley Arkes’ latest book, Mere Natural Law: Originalism and the Anchoring Truths of the Constitution, contains much common sense about natural law, but much less insight into either originalism or contemporary Supreme Court jurisprudence. In short, his thesis is that originalist interpretation needs to be supplemented by the truths of natural law to avoid a slide into relativism. But originalism does not need Arkes’ infusion of natural law to beat the charge of relativism. The judicial doctrine arising from originalism reflects the appropriate place to include moral reasoning in our political system.

And from the conclusion:

There may be some role for natural law in originalism. But it does not resemble the function Arkes promotes. He understands natural law to provide free standing axioms which may decide cases, but he has not provided evidence that, however much the Founding generation believed in natural law, its jurists incorporated this approach into judicial review. Arkes does refer to Gibbons v. Ogden, where Chief Justice John Marshall demonstrated “propositions that would have been thought to be axioms.” But the axioms in this case are not appeals to natural law, but instead to rules of textual interpretation. In that passage, for instance, Marshall observed that it did not matter that steamboats moved by steam rather than by sail, because the text of the Commerce Clause leaves questions like that to discretion of Congress.

Nevertheless, it is possible that natural law may prove useful within the interstices of originalism. First, natural law might be used to resolve ambiguities of the original meaning in the Constitution. Certainly, the Constitution was written against a background where natural law was familiar to enactors. But there would need to be evidence that the principle mandating the interpretation of ambiguities in light of natural law was one that they deemed applicable. 

Second, the original meaning of some provisions of the Constitution might require natural law for their definition. In Tyler v. Hennepin County, a decision rendered just last month, the Supreme Court unanimously held that a state retention of the entire value of a home in forfeiture—going beyond what was necessary to satisfy a person’s tax obligation—was a taking of property in violation of the Fifth Amendment. Minnesota argued that state law permitted it to retain these excess proceeds and therefore it was not a taking. Chief Justice John Roberts summarily rejected the argument, noting that if state law were permitted unlimited discretion to decide what was property, the Taking Clause would become a dead letter. Instead, the Court would define property by looking to “traditional property law principles plus historical practices and this Court’s precedent.” Roberts found some of his key traditions in the Magna Carta, but it might be argued that natural law could help provide a definition as well.   

Thus, a fruitful dialogue to be had between natural law and originalism may well have a future. But Mere Natural Law, despite its interesting insights about natural law, does not yet provide a framework for that conversation.


Josh Blackman on Originalism in Haaland v. Brackeen
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: A Tale of Two Originalists - Justice Gorsuch v. Justice Thomas in Brackeen.  From the introduction: 

... For those who care about originalism, Brackeen is probably the most significant case of the term....  I'll focus on the question of whether ICWA is within Congress's Article I powers. ... ICWA, to the extent it is within Congress's Article I powers, can only be supported by Article I, Section 8, Clause 3:

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

... Justices Thomas and Gorsuch disagree about the meaning of "commerce" in the Indian Commerce Clause. Justice Gorsuch contends the meaning of "commerce" is broader with regard to Congress's powers to regulate Indian tribes. This analysis, which stretches about two pages, appears in Part II-C-2 of the concurrence. Part III-A-2 of Justice Thomas's dissent provides the counter.

I will walk through several points on which Gorsuch and Thomas disagree....

From the substantive discussion:

During the Constitutional Convention, there was a proposal to give Congress the power to regulate "Indian Affairs." (The Articles of Confederation used such language). But this proposal was rejected, twice. (Lorianne Updike Toler wrote a fascinating article and post on this history.) What inference should we draw from this rejection? Justice Thomas observed that the word "affairs" is broader than the word "commerce." Thomas concluded, "whatever the precise contours of a freestanding 'Indian Affairs' Clause might have been, the Founders' specific rejection of such a power shows that there is no basis to stretch the Commerce Clause beyond its normal limits." Justice Gorsuch, however, favorably cites scholarship from Professor Jack Balkin, who expressly equates Indian "commerce" with Indian "Affairs."

 Congress has the authority to manage "all interactions or affairs … with the Indian [T]ribes" and foreign sovereigns—wherever those interactions or affairs may occur.

Justice Thomas countered that "when the Founders referred to Indian 'affairs,' they were often referring to diplomatic relations—going far afield of their references to Indian 'commerce.'"


Justice Thomas explains that the word "Commerce" would "naturally" have the "same meaning" with respect to interstate commerce, Indian commerce, and foreign commerce. Here he cites Professor Sai Prakash's article that promotes intrasentence uniformity. Justice Thomas observed that the parties and amici have not presented "any evidence that the Founders thought that the term "Commerce" in the Commerce Clause meant different things for Indian tribes than it did for commerce between States."

Justice Gorsuch counters that "Indian commerce was considered 'a special subject with a definite content,' quite 'distinct and specialized' from other sorts of 'commerce.'" Here, Justice Gorsuch cites Professor Gregory Ablavsky, who surveyed founding-era usage, and concluded that Indian commerce "took on a broader meaning than simple economic exchange." As best as I can tell, Professor Ablavsky's brief did not perform any corpus linguistic analysis. Rather, he cited what Justice Thomas referred to as "a few, fairly isolated references to 'commerce' outside the context of trade, usually in the context of sexual encounters." ...

Justice Thomas then cited a host of statements from Washington, Jefferson, and others to show that "When discussing 'commerce' with Indian tribes, the Founders plainly meant buying and selling goods and transportation for that purpose." For good measure, Footnote 7 includes another raft of entries. When determining original meaning, by corpus lingusitics or otherwise, it is useful to determine a predominant sense of a word. Thomas's position provides far more evidence of the majority sense.


Justice Thomas offers a brief rejoinder to the Balkin theory of intercourse:

Nor is the definition of "commerce" as "intercourse" instructive, because dictionaries from the era also defined "intercourse" as "commerce." E.g., Johnson; Allen. Even some of these same scholars concede that the Founders overwhelmingly discussed "trade" with Indians—far more than either "intercourse" or "commerce" with them. See Ablavsky 1028, n. 81.

More broadly, Balkin's theory of "intercourse" was not constrained to the Indian Commerce Clause. He would extend his theory to the Interstate Commerce Clause. And Balkin expressly defends the New Deal precedents as an originalist matter:

I disagree both with originalists and with their critics because I do not believe that the New Deal is inconsistent with the Constitution's original meaning, its text, or its underlying principles.

Is Gorsuch willing to follow Balkin all the way to 1937? He does hint at a way to distinguish away Balkin's work.

There are some textual differences in Article I, Section 8, Clause 3. The Interstate Commerce Clause applies to commerce "among" the several states, while the Indian Commerce Clause refers to commerce "with" the Indian Tribes. Gorsuch reasons that this varied "language suggests a shared framework for Congress's Indian and foreign commerce powers and a different one for its interstate commerce authority." And, Gorsuch concludes, again citing Balkin, "'Congress's powers to regulate domestic commerce are more constrained' than its powers to regulate Indian and foreign commerce."

I am a big fan of Jack Balkin's work, but I am still partial to Randy Barnett's criticism of the "intercourse" theory. Barnett did not discuss the Indian Commerce Clause aspect, so we do not have a clear point-counterpoint on this issue. But on balance, I am hesitant to read Indian commerce as Indian "Affairs." Again, the Constitutional Convention expressly rejected an Indian affairs provision of the Constitution. Yet, Balkin, and Gorsuch apparently, would still vest Congress with that power.

And from the conclusion:

Justice Gorsuch has certainly given this issue some thought, but I see Brackeen as deviating from generally-accepted originalist methodology. I do not think he makes the case that the word "Commerce" is broader with regard to Indians, than with regard to interstate commerce. The words "with" and "among" are distinct, but that doesn't suffice to reject principles of intrasentence uniformity. Moreover, I would need to see a far more sophisticated corpus analysis to displace the predominant sense of what "commerce" meant in 1789. In addition, we have to contend with the Convention's express rejection of an Indian Affairs Clause, which shrank, rather than expanded Congress's powers. Finally, it raises huge red flags that Justice Gorsuch gladly signed onto the "intercourse" theory that is premised by Balkin's self-professed "living originalism," and rejected the work of Professor Robert Natelson on the Indian Commerce Clause. I've been in this business long enough to know not to challenge Natelson's work, unless I have really strong evidence. But Gorsuch did not even engage Natelson. Nor did Justice Gorsuch even respond to Justice Thomas.

Related: Professor Blackman also has this post on the majority opinion: Professor Barrett Flunks Brackeen's Lawyers.


Originalism and the Second Best in Brackeen
Will Foster

[Ed.:  For this guest post we welcome back Will Foster, a rising senior at Columbia University.]

Last week, the Supreme Court decided Haaland v. Brackeen, a case about the constitutionality of certain provisions of the Indian Child Welfare Act (ICWA). The case involved a number of issues, but in my view the most interesting one from an originalist perspective (and the issue that divided the dissenters from the majority) was the question of Article I power. What enumerated powers, if any, authorized Congress to pass the challenged ICWA provisions? 

Much has been and will be said about various features of the opinions in this case. But what I found particularly noteworthy was how Justice Barrett’s majority opinion and the dissents of Justices Thomas and Alito grappled with the problem of the second best. This is a problem that is likely familiar to most people, even if informally. And as William Baude has noted, it is a problem that “may be especially easy to see for originalists.” One (oversimplified) way to look at the issue in Brackeen is to think of the justices as trying to optimize two variables, the coherence of their case law and the consistency of their decisions with the Constitution’s original meaning. Their most preferred outcome is clearly to optimize both -- to decide every case in a way that is perfectly originalist and fits seamlessly within the existing web of precedent. But what if they can’t do that? What’s the next-best outcome?

Justice Barrett grappled fairly explicitly with this question in Part II-C of her opinion. After cataloging some “obstacles” to the challengers’ position under existing precedent, Justice Barrett stated that when “petitioners turn to criticizing our precedent as inconsistent with the Constitution’s original meaning … they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.” This is the fundamental problem the Court faced: Because petitioners did not “ask us to overrule the precedent they criticize,” the justices were faced with a request to create seemingly arbitrary exceptions to prior case law. Instead of “a theory for rationalizing this body of law,” the Court would be left with an irrational jumble. In footnote four, the majority makes this point with admirable clarity, and it is worth quoting at length: “Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1) those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land … According to Texas, ICWA is unconstitutional because it does not fall within any of these categories … But even if Texas’s theory is descriptively accurate, Texas offers no explanation for why Congress’s power is limited to these categories.”

This is the arbitrariness objection described above. And in one sense, what Justice Barrett said here is perfectly ordinary. As then-Professor Barrett wrote in one of her several important articles on stare decisis, the party presentation rule means that Supreme Court justices need not reach out to question the validity of precedents the parties do not ask the Court to overrule. “That rule is not hard and fast, and the Justices sometimes raise additional issues, like the matter of precedent’s validity, on their own,” Barrett wrote. “But doing so happens when a Justice wants to address the merits of precedent.” And, taking precedent as given -- as the Court was therefore entitled (if perhaps not obligated) to do -- the result reached in Brackeen was certainly plausible. The majority saw that petitioners were not urging a full return to the Constitution’s original meaning (or anything close to that), and decided that resolving the case solely based on prior doctrine was preferable to attempting a sort of awkward hybrid of precedent and original meaning.   

This is a particular way of dealing with the second-best problem, and it has much to recommend it. Yet I worry that something might be lost here, and the dissenting justices seem to have shared that concern. The difficulty is that the majority’s all-or-nothing approach -- if the Court cannot find a new comprehensive theory, it should leave the doctrine precisely as it stands -- may lead to results that drift farther and farther away from the original meaning. The overall coherence of case law is important, but so is deciding individual cases rightly. To Justice Alito, all the majority’s fretting about the general structure of Indian law was beside the point: “We need not map the outer bounds of Congress’s Indian affairs authority to hold that the challenged provisions of ICWA lie outside it … By attempting to control state judicial proceedings in a field long-recognized to be the virtually exclusive province of the States, ICWA violates the fundamental structure of our constitutional order.” There was no need, in Alito’s view, to “question the proposition that Congress has broad power to regulate Indian affairs,” as a general matter. Rather, all the Court needed to do was recognize that “in some circumstances, the powers reserved to the States inform the scope of Congress’s power,” and “governance of family relations—including marriage relationships and child custody” is among these reserved powers. To “remain faithful to our founding,” Justice Alito thought the Court must protect these reserved powers, whatever else it might have decided in other Indian law cases: “ICWA surpasses even a generous understanding of Congress’s Indian affairs authority.”

The majority found Justice Alito’s “family law carveout” peculiar. After all, there was no evidence that anyone at the Founding thought “family law is wholly exempt from federal regulation.” The majority quoted Madison’s assertion that “when the Constitution conferred a power on Congress, ‘they might exercise it, although it should interfere with the laws, or even the Constitution of the States.’” But this arguably begs the question at issue, namely, whether the power to pass ICWA was in fact “conferred … on Congress.” In Justice Alito’s telling, the fact that such a power intrudes so heavily on areas of traditional state sovereignty is very good evidence that such a power was not given to Congress. To be sure, the majority is not wrong to see the purported “constitutional carveout” for family law as a somewhat ad hoc exception to Congress’ powers. But that is not necessarily a mark against it.

To see why, consider the litigation over the Affordable Care Act’s individual mandate more than a decade ago. To many observers, the Commerce Clause arguments against the mandate were difficult to understand. Congress could already regulate so much -- why should courts draw a new line between activity and inactivity? This line seemed arbitrary and unprincipled. But as Stephen Sachs explained at the time, what was really going on was far deeper than that. “What bothers many opponents of the mandate is not that it might overstep the Holy Writ of Raich or Comstock,” he wrote. Instead, to them, “the mandate—as the apotheosis of the substantial-effects test—is a signal that Something Has Gone Wrong in our reading of the Constitution.” To be sure, “[t]he lawyers challenging the mandate aren’t asking the Court to overrule Wickard v. Filburn, or to get rid of the substantial-effects test. That’s no surprise. Lawyers don’t go into court advancing the most extreme, philosophically pure version of their theories … Courts often amend past doctrines by distinguishing prior cases on narrow, sometimes formal, grounds. That’s how doctrine usually changes over time; not by wholesale overruling, but by slow evolution and reassessment of the law.”

One of the lawyers for the mandate’s challengers, Professor Randy Barnett, had essentially the same view. He saw NFIB v. Sebelius as an example of the “gravitational force of originalism” at work, in which the Court accepted the New Deal expansions of the Commerce Clause but drew a line in the sand, in essence saying “this far and no farther.” (Josh Blackman recently made this same point about United States v. Lopez; Justice Thomas himself mentions Lopez in footnote 17 of his Brackeen dissent.) When viewed in this context, it becomes apparent that Justice Alito’s approach in Brackeen is in line with the Court’s general approach to federalism cases in recent years. To quote then-Judge Kavanaugh, one can interpret precedent “in light of and in the direction of the constitutional text and constitutional history” without jettisoning the precedent entirely. In the words of Richard Re, narrowing precedent -- a practice “that has been accepted and employed by virtually every Justice” -- “will rarely if ever result in a perfect fit between the narrowed precedent and background principles of law. Yet there is nothing remarkable about this, as it is in the nature of judicial decisionmaking to ‘work itself pure’ only gradually.”

Recall that the majority in Brackeen questioned how Texas derived its proposed “three buckets” of congressional Indian affairs power -- where are those limits in the Constitution? Justice Thomas responded that “limiting Congress’ authority to those ‘buckets’ would bring our jurisprudence closer to the powers enumerated by the text and original meaning of the Constitution … While I share the majority’s frustration with petitioners’ limited engagement with the Court’s precedents, I would recognize the contexts of those cases and limit the so-called plenary power to those contexts. Such limits would at least start us on the road back to the Constitution’s original meaning in the area of Indian law.” For Justice Thomas, like Alito, something is better than nothing, and the doctrinal jumble created by declining to extend arguably applicable precedents is a price worth paying to nudge the doctrine closer to the original meaning. The risk is that the lines will appear arbitrary, but the Court already accepts that risk in other contexts, and it is not clear why they should not do so here.

Perhaps the majority doesn’t actually disagree with any of this in principle, but simply does not see any tension between its approach and originalism here. On its face, Justice Barrett’s opinion seems agnostic as to whether any enumerated power, as originally understood, can justify ICWA. But we know that Justice Gorsuch (who joined the Court’s opinion in full) thinks ICWA is justified by the original meaning of the Indian Commerce Clause. Perhaps some or all other members of the majority agreed with that conclusion, albeit silently. (No other justice joined the lengthy historical analysis in Part II of Gorsuch’s opinion, although Justices Sotomayor and Jackson did join Part III, which summarizes some of what was said in Part II.) It is quite possible that Justice Gorsuch’s originalist analysis is right -- I have not studied the question in detail. If so, then there is no conflict at all between originalism and doctrine in this case (at least in the sense that they reach the same result), and the problem goes away. Wading into a difficult and sometimes contentious originalist debate -- one that pits Gregory Ablavsky and Justice Gorsuch against Robert Natelson and Justice Thomas -- might not make much sense if one suspects it will make no difference to the result reached by applying settled doctrine. Alternatively, and perhaps more plausibly, some of the justices in the majority may have been unsure whether to side with Gorsuch or Thomas, and therefore could have seen no warrant to hold ICWA unconstitutional based on an originalist analysis that did not yield a conclusive answer. (After all, as Barrett explained, challengers to ICWA “bear the burden of establishing ICWA’s unconstitutionality.”) If this is the case, though, it would have been helpful for the majority to explain why it felt that the history was unclear. Additionally, the Court’s opinion in Brackeen seems at times to suggest that even if the Court thought the original meaning was clearly against ICWA, the Court would still uphold the statute, at least in this case.

To be clear, for present purposes, the merits of Brackeen (or any other case) are largely beside the point. The tricky issue of originalism and the second-best is certain to recur, and it is edifying to see the justices grappling with these sorts of questions. I am not sure that there is any general solution to them, and it may be that each case requires a different analysis. Certainly, the division between the justices in Brackeen emphasizes just how thorny this issue is. But I think there is value in recognizing the debate when it occurs. The question of when to overturn precedent gets a lot of attention, with much left up to justices’ discretion. But at least there are some standards that almost all the justices accept (Justice Thomas has a different view of stare decisis, but to his credit he has explained it at some length). When considering the issue at stake in Brackeen -- how to balance the internal coherence of constitutional doctrine with the demands of the Constitution itself, when neither can be perfectly achieved or satisfied -- there are virtually no generally accepted standards at all. Perhaps I and others will be able to explore what these standards should be in future work.