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28 posts from July 2023


Nathan Chapman: The Case for the Current Free Exercise Regime
Michael Ramsey

Nathan S. Chapman (University of Georgia School of Law) has posted The Case for the Current Free Exercise Regime (Iowa Law Review, Vol. 108, No. 5, 2023) (39 pages) on SSRN.  Here is the abstract:

How the Supreme Court ought to implement the Free Exercise Clause has been one of the most controversial issues in U.S. rights discourse of the past fifty years. In Fulton v. City of Philadelphia, a majority of the justices expressed dissatisfaction with the standard articulated in Employment Division v. Smith, but they could not agree on what ought to replace it. This Essay argues that focusing on whether to overrule Smith is a distraction from the sensitive task of implementing the Free Exercise Clause. This is not because Smith was “right,” but because (1) the history and tradition are both indeterminate about accommodations from generally applicable laws, giving judges a measure of discretion about how to implement the Clause; (2) Smith has always been only one component of a much larger American legal regime with extraordinarily robust free exercise rights; and (3) subsequent cases have rendered the Smith doctrine so malleable that it is now arguably more protective of religious exercise than the pre-Smith regime had ever been.

So the question is not whether to keep Smith but how the Court ought to implement the Clause, consistent with the original understanding, tradition, precedent, and the broader legal protections for religious exercise. This Essay argues that the Court should announce constitutionally mandated accommodations when there is reason to suspect that the political process that would ordinarily have yielded a religious accommodation failed to do so because of a political blind spot or bias. Applied delicately, with an eye toward promoting the American tradition of political, rather than judicial, accommodations, the “most-favored-right” doctrine, for all its conceptual faults, can serve that purpose, especially when coupled with robust, context-specific protections for discrete categories of religious exercise like speech, assembly, association, and ministerial employment.

And from the main part of the article (footnotes omitted):

The Free Exercise Clause provides that “Congress shall make no law . . . prohibiting the free exercise [of religion].” From the text alone, it is unclear whether the Clause forbids only laws that “prohibit” the exercise of religion as such, meaning, because of the conduct’s religious motivation, or whether it also forbids the application of general laws to religiously motivated conduct. On what does the Clause focus? The nature of the government’s act, in which case it forbids the express or deliberate prohibition of religious exercise? Or the nature of a claimant’s conduct, in which case it forbids any government action that has the effect of prohibiting someone’s religious exercise? The Clause may be read either way.

Justice Alito disagrees. In Fulton, he argued that “the ‘normal and ordinary’ meaning” behind “‘prohibiting the free exercise [of religion]’ . . . is[] forbidding or hindering unrestrained religious practices or worship.” He constructed this meaning by cobbling together selected dictionary definitions of words in the Clause. The result, he argues, requires exemptions. But that is not the case— his paraphrase raises the same ambiguity as the Clause’s text. Which matters, the nature of the government’s action, or the nature of the claimant’s conduct?

To overcome this ambiguity, Alito offers a translation of the Free Exercise Clause, asserting that it provides “the right to [exercise religion] without hindrance.” This reformulates the Clause’s negative (“Congress shall make no law . . .”) as an affirmative right and cleverly puts the emphasis on the private party, not the government. But for this reason, his translation goes well beyond the Clause’s “normal and ordinary meaning.” The Clause says nothing about a right, much less about what Justice Alito calls the right of “a specific group of people (those who wish to engage in the ‘exercise of religion’).” Rather, it forbids the enactment of a certain kind of law, one that “prohibits the free exercise [of religion]”—but the question is what sort of law it forbids.

Contemporaneous evidence from the amendment’s drafting history doesn’t help illuminate the text either. As Professors John Witte, Jr., Joel A. Nichols, and Richard W. Garnett argue, that history may bear either a “thinner reading” that amounts to “Congress may not proscribe religion” or a “thicker reading” that would require accommodations from general laws, both of which are “plausible readings of the place of the freedom of conscience in the First Amendment.” The amendment’s text plainly contemplates the protection of “religious exercise” from a government prohibition, but it does not specify how.

This is basically what Justice Scalia concluded in Smith -- that the claimants had not proved the clause had the broader original meaning.  The question is what to do then.  The article says "the history and tradition are both indeterminate about accommodations from generally applicable laws, giving judges a measure of discretion about how to implement the Clause."  Not all originalists would agree (though I take it that theories of constitutional construction would indicate this conclusion).  An alternative approach is that if the original meaning is truly "indeterminate" (that is, neither reading seems more plausible than the other), then the courts lack authority to override the political branches.  That is how I understand Scalia's conclusion in Smith.  As a result, overruling Smith requires concluding either (a) that the "thick" original meaning is more plausible than the alternative, or (b) that in cases of indeterminate original meaning courts have discretion to overrule the political branches.


Darrell Miller et al.: Technology, Tradition, and "The Terror of the People"
Michael Ramsey

Darrell A. H. Miller (Duke University School of Law), Alexandra Filindra (University of Illinois at Chicago - Political Science and Psychology) & Noah Kaplan (University of Illinois at Chicago -  Political Science) have posted Technology, Tradition, and "The Terror of the People" (Notre Dame Law Review, forthcoming) (35 pages) on SSRN.  Here is the abstract:

In New York State Rifle & Pistol Association, Inc. v. Bruen, the Supreme Court mandated a text, history, tradition, and analogy-only approach to Second Amendment cases.

No longer can policymakers rely on empirical data alone to carry their litigation burden. Now such data must conform to a still-emerging "historical tradition of firearm regulation" to meet constitutional muster. Some despair that that reams of data, careful experiments, and rigorous statistical analyses no longer have any relevance to the gun debate.

But those that claim that Bruen signals the end of empirically-grounded policy solutions badly misread the opinion. Empirical studies can still inform meaningful gun policy, but the boundaries that make such studies legally significant are now set by Bruen’s text, history, tradition and analogy-only approach.

This article uses an original survey experiment to measure the "chill" caused by public weaponry, and connects those experimental findings to the longstanding tradition of regulating weapons to protect the peace and to prevent "the terror of the people." The article shows that, far from being irrelevant, modern empirical data can help bridge the gap between modern problems and technology and the historical record of gun rights and regulation.


James Heilpern: Acting Cabinet Secretaries & the Twenty-Fifth Amendment [Updated]
Michael Ramsey

James Heilpern (Brigham Young University - J. Reuben Clark Law School) has posted Acting Cabinet Secretaries & the Twenty-Fifth Amendment (University of Richmond Law Review, Vol. 57, No. 1169, 2023) (65 pages) on SSRN.  Here is the abstract:

The Twenty-Fifth Amendment of the United States Constitution contains a mechanism that enables the Vice President, with the support of a majority of the Cabinet, to temporarily relieve the President of the powers and duties of the Presidency. The provision has never been invoked, but was actively discussed by multiple Cabinet Secretaries in response to President Trump’s actions on January 6, 2021. News reports indicate that at least two Cabinet Secretaries — Secretary of State Mike Pompeo and Treasury Secretary Steve Mnuchin — tabled these discussions in part due to uncertainties about how to operationalize the Amendment. Specifically, the Secretaries were concerned that the text of the Amendment did not specify whether Acting Cabinet Secretaries (of which there were three at the time) should be included in the vote.

This Article considers that question in light of both the common law and Supreme Court of the United States precedent, concluding that Acting Secretaries should indeed be counted. However, the Article also highlights the political risks caused by the text’s ambiguity and proposes a legislative solution to sidestep the issue.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Fascinating, well-argued, and highly recommended."


Mark Pulliam on NYT v. Sullivan
Michael Ramsey

At Law & Liberty, Mark Pulliam: Inventing Modern Libel Law (reviewing  Actual Malice: Civil Rights and Freedom of the Press in New York Times v. Sullivan by Samantha Barbas).  From the core of the discussion:

Sullivan is celebrated in liberal circles as a landmark Warren Court precedent protecting free speech and taking sides in the struggle for civil rights, but is the decision sound as constitutional law? Many prominent critics, including law professor Richard EpsteinReynolds, the late D.C. Circuit Judge Laurence Silberman, Justices Clarence Thomas and Neil Gorsuch, and various conservative pundits and scholars, claim that Sullivan conferred on the media an unwarranted immunity from liability for publishing false statements, and accordingly has emboldened the fourth estate to become an increasingly aggressive—and partisan—combatant in the culture war.

The critics make a powerful case. To begin with, Sullivan was not, and did not pretend to be, an originalist decision. Written in 1964 during the heyday of Warren Court activism—the era of the “living Constitution”—Sullivan predated the ascendency of originalism decades later. Sullivan was a radical decision in several respects. It nullified the libel laws of all 50 states, which were in place at the Founding, and for “public officials” replaced the common law of strict liability for defamatory statements—a legal doctrine Barbas describes as “ancient,” whose roots date to the Middle Ages—with a legal standard drawn practically verbatim from the brief filed by the New York Times’ lead appellate lawyer, Columbia law professor Herbert Wechsler (who, ironically, during a WWII stint working for the DOJ, argued the infamous Korematsu decision before the Supreme Court). As Barbas observes, “An area of law that had been left up to the states was nationalized, with a constitutional floor established.”


A growing chorus of Sullivan critics, led most prominently by Justice Clarence Thomas, urges that the decision be overturned. The “actual malice” standard has no basis in the original understanding of the First Amendment. Thomas’s powerful concurring opinion in McKee v. Cosby (2019) made the case for overruling Sullivan as an extra-constitutional usurpation of state law that allows reputation-damaging false statements to go unremedied. In 2021, the late Judge Laurence Silberman of the D.C. Circuit wrote a passionate dissenting opinion in Tah v. Global Witness, citing Justice Thomas and urging the Supreme Court to overrule Sullivan, which he cheekily described as “policy-driven decision masquerading as constitutional law.” Thomas, joined separately by Neil Gorsuch, continued his originalist critique of Sullivan in a 2021 dissent from the Court’s denial of certiorari in Berisha v. Lawson.


Andrew Coan & David Schwartz: Interpreting Ratification
Michael Ramsey

Andrew Coan (University of Arizona, James E. Rogers College of Law) & David S. Schwartz (University of Wisconsin Law School) have posted Interpreting Ratification (1 J. Am. Con. Hist. 449 (2023)) (90 pages) on SSRN.  Here is the abstract:

For two centuries, constitutional interpreters have relied on statements from the ratification debates—especially The Federalist—as persuasive authority in constitutional interpretation. This reliance, which has only increased with the rise of public-meaning originalism, mistakes Federalist campaign literature and oratory for objective and disinterested constitutional interpretation, and mistakenly dismisses the interpretations of Anti-Federalists as irrelevant.

Focusing on the debate over enumerated powers, this article challenges the unfounded assumptions of Federalist objectivity and Anti-Federalist irrelevance and models the historical method necessary to interpret the ratification debates rigorously. More specifically, the article advances three central claims. First, the probable insincerity of much Federalist advocacy—including The Federalist—significantly undercuts its authority as evidence of a determinate original public meaning. Second, Anti-Federalist advocacy opposing ratification is much more probative evidence of original public meaning than has generally been recognized. Third, the most prominent arguments for privileging Federalist over Anti-Federalist advocacy are internally flawed and historically unfounded. More important, none of those arguments can be squared with the tenets of public-meaning originalism.

All of this significantly undermines a principled originalist case for limiting federal power. It also calls into question the resolving power of originalism as a practical method for deciding controversial cases. Both of these implications would represent seismic shifts in U.S. constitutional law.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended".)

Related: from earlier this year, by the same authors: The Original Meaning of Enumerated Powers.

I agree that caution is needed in using The Federalist and that anti-federalist writers should be considered as well.  I'm not sure that's especially controversial in originalist circles, at least in theory, but it may sometimes be overlooked in practice. I'm not persuaded by the authors' challenges to the   idea of limited federal power, which I think is pretty clear from the text.


A Note on Moore v. Harper
David Weisberg

The Supreme Court’s recent decision in Moore v. Harper, 600 US __ (2023), in an opinion for the 6 to 3 majority by Chief Justice Roberts, rejects on the merits the view that the Elections Clause “insulates state legislatures from review by state courts for compliance with state law.” (Roberts, C.J., slip op., p. 11.)  The Elections Clause (Art. I, Sec. 4, Cl. 1) recites:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

Because the Clause specifies that a State’s legislature shall prescribe the relevant regulations, the question arises whether a State’s courts should play any role at all in the regulation-making process.  Contrary to Moore, I think that the plain meaning of the Clause supports a negative answer.

The framers could have proposed an Elections Clause (which I’ll call the “alternate version”) as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in and by each State; ….

The alternate version would have saved several words but, more importantly, it would have made clear that all branches of a State’s government, including its judiciary, could participate in prescribing the regulations.  And this important difference between the actual and the alternate version is underlined by the fact that in the original unamended Constitution, by my count, the “Legislature(s)” of the “State(s)” is (are) referred to exactly eleven (11) times.  In contrast, the “State” or “States,” as political entities—excluding the name “United States” and also references to foreign States—are referred to sixty-four (64) times.  (Space limitations prevent citations for each reference.)

This substantial imbalance is, I think, convincing evidence that the framers did not consider terms like “Legislatures of the States” to be interchangeable or synonymous with “States” (see, e.g., Art. IV, Sec. 3, Cl. 1).  I therefore believe that the burden of proof, so to speak, falls on those who contend that the actual clause, which on its face authorizes only a State’s legislature to prescribe the regulations, nevertheless permits a State’s courts to review those regulations “for compliance with state law.”

The majority opinion in Moore offers two different kinds of support for its conclusion: First, a discussion of the history of judicial review; secondly, an examination of three Court precedents that supposedly support the participation of a State’s courts in the regulation-making process.

Regarding history, the Chief Justice argues convincingly that the practice of a State’s courts striking down laws that are inconsistent with the State’s constitution—i.e., judicial review—was well known in 1789.  I accept that conclusion.  But that history bolsters the argument against judicial review of the regulations prescribed by the State’s legislature.

Again, the framers could have proposed the alternate version of the Elections Clause, and that would have made clear that a State’s courts may participate in the regulation-making process.  The greater the framers’ familiarity with the concept of judicial review, the more reason they would have had to propose the alternate version if they indeed wanted a State’s courts to exercise judicial review over regulations prescribed by the legislature.  But they didn’t propose the alternate version.  Thus, the relevant history strongly suggests that judicial review by a State’s courts should not be part of the regulation-making process mandated by the Elections Clause.

Regarding precedents, the Chief Justice begins with Ohio ex rel. Davis v. Hildebrant, 241 US 565 (1916).  The Ohio legislature drew new congressional districts.  The citizens of Ohio, exercising their right under the Ohio constitution to hold a popular referendum and disapprove legislative enactments, did just that with respect to the new congressional districts.  Ohio’s supreme court subsequently rejected the argument that the Elections Clause necessitated that the referendum results be disregarded.  In the U.S. Supreme Court, that decision was unanimously affirmed.

Chief Justice Roberts cites Hildebrant as one of three precedents that “rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections.”  (Robert, C.J., slip op, 19.)  But, even if state legislatures do not have “exclusive and independent authority,” it does not follow that state courts have a role to play.  And a careful reading of Hildebrandt reveals that that opinion in no way supports any role for state courts.

Chief Justice White’s opinion in Hildebrandt begins with this statement:

By an amendment to the Constitution of Ohio, adopted September 3, 1912, the legislative power was expressly declared to be vested not only in the senate and house of representatives of the state, constituting the General Assembly, but in the people, in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.

(241 US 566.)  Thus, Ohio’s constitution “expressly declared” that legislative power is vested in both the people and the legislature.  The Ohio supreme court decision, said Chief Justice White, was “conclusive on that subject.” (241 US 568.)  This is glaringly different from the situation in Moore, because nothing in North Carolina’s constitution vests legislative power in the State’s courts.  Judicial review is of course a judicial power exercised by the judiciary; it is not a legislative power exercised by the judiciary.  Hildebrandt provides no authentic support for the result in Moore.

Chief Justice Roberts next considers Smiley v. Holm, 285 US 355 (1932).  The Minnesota legislature adopted a redistricting plan and sent it to the governor for his approval, but he vetoed it instead.  The secretary of state ignored the veto and began to implement the plan.  A citizen sued to prevent implementation, contending that the veto had nullified the plan.  The State’s supreme court disagreed, finding that the Elections Clause gives the legislature authority that is “unrestricted, unlimited, and absolute.”  The U.S. Supreme Court unanimously reversed.

Chief Justice Roberts says this about Smiley:

A state legislature’s “exercise of . . . authority” under the Elections Clause, we held, “must be in accordance with the method which the State has prescribed for legislative enactments.” Smiley, 285 U. S., at 367. Nowhere in the Federal Constitution could we find “provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.” Id., at 368.

(Roberts, C.J., slip op, 16.) 

It should be clear from the above that Smiley provides no genuine support for Moore, because judicial review is no part the method which any State has prescribed for enacting laws, and that is the activity consistently referenced in Smiley.  Rather, judicial review is a method by which the courts un-enact laws that the legislature has enacted.  Legislatures have the power to make laws; courts have the power to unmake laws.  (I’ve discussed this here.)  A statute or regulation that has never been subject to judicial review is as fully a law as one that has been reviewed and upheld by the courts many times.  Smiley stands only for the proposition that the Elections Clause does not change the method whereby a State’s laws are enacted.  Judicial review is not part of that method in any State in the Union.

The last case heavily relied on in Moore is Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U. S. 787, (2015).  Arizona’s constitution permits voters to amend the constitution by ballot initiative.  Using that method, the voters amended the constitution to cancel the legislature’s power to enact redistricting plans and to vest that power in an independent redistricting commission.  The legislature sued to prevent implementation of the commission’s redistricting plan, and the U.S. Supreme Court, in an opinion by Justice Ginsburg for a 5 to 4 majority, held that Arizona’s reliance on an independent redistricting commission did not violate the Elections Clause.

Justice Ginsburg asserts: “[O]ur precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking[.]” (576 US 808.)  She then goes on to find:

As to the “power that makes laws” in Arizona, initiatives adopted by the voters legislate for the State just as measures passed by the representative body do. See Ariz. Const., Art. IV, pt. 1, § 1 (“The legislative authority of the state shall be vested in the legislature, consisting of a senate and a house of representatives, but the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.”).

(576 US 814.)  Thus, Arizona Legislature is essentially the same kind of case as Hildebrandt:  Both feature state constitutions that explicitly provide that the power to make laws is not exclusively exercised by the legislature, but is also reserved by and vested in the people.  But the power to make laws is not vested in the courts of any State.  Judicial review, again, is a power to unmake, not make, laws.  So, Arizona Legislature does not support Moore.

Any redistricting plan—whether enacted by a State’s legislature (as in Moore), or by referendum (as in Hildebrandt), or by an independent commission created by ballot initiative (as in Arizona Legislature)—must be consistent with the U.S. Constitution and federal law.  And the Elections Clause itself explicitly authorizes Congress to alter any regulations a State’s legislature might prescribe.  So Chief Justice Roberts should have realized that, even if Moore had been decided the other way, no State’s legislature would have “exclusive and independent authority” under the Elections Clause.  Federal law and the U.S. Constitution would continue to be the supreme law of the land.    

If the framers intended that the regulations proposed by a State’s legislature should be subject to judicial review by the State’s courts, why did they not propose the alternate version of the Elections Clause, which would have left no doubt regarding that issue?  The opinion in Moore provides no satisfactory answer to this question, and that’s why I believe it reaches the wrong result.


Judge Neomi Rao: Textualism’s Political Morality
Michael Ramsey

Recently published, in the Case Western Reserve Law Review, the 2022 Sumner Canary Memorial Lecture by Neomi Rao (D.C. Circuit).  From the introduction (footnotes omitted):

... [M]y lecture will explore the political morality that undergirds and informs a textualist approach to statutory interpretation. I will endeavor to explain why formal approaches to legal interpretation, such as textualism, are an outgrowth of political morality and how they carry political morality into practice.

This way of thinking about textualism may seem surprising. After all, textualism is a kind of formalism, and it generally draws a sharp line between the law’s objective meaning and the judge’s moral preferences. Textualists hold fast to the principle that the law is the words enacted by the people’s democratically elected representatives. It follows that in deciding individual cases, judges must give effect to the law as it is, not as they believe it should be. This textualist approach is often juxtaposed with methods of interpretation that rely on the judge’s abstract normative values about justice or fairness or that seek to update statutes in accordance with evolving social or political norms. I am wholeheartedly on the textualist side of these debates.

But the familiar defense of textualism sells it short. This lecture aims to identify the rich moral foundations of a text-based approach to interpreting statutes.

I want to make two basic points. First, I want to defend textualism from the vantage point of political morality. Properly understood, textualism follows naturally from the moral commitments at the heart of our constitutional system of government. Understanding textualism from this perspective is especially timely in light of recent criticisms of formal, text-based methods of interpretation. For instance, a wave of post-liberal scholars, such as
Adrian Vermeule, have suggested that laws should be interpreted to promote the “common good.” They claim textualism is inadequate because it is indifferent to this common good. But this isn’t really a new criticism. Rather, it merely reflects the familiar view that judges should give effect to certain substantive values, values that exist independently of the law. There are many variants of this view, but to name just a few: Ronald Dworkin argued that judges should act as philosophers, promoting justice understood in an abstract way; William Eskridge has argued that statutes must be interpreted dynamically, in light of contemporary social and moral norms; and Judge Posner maintained that judges must interpret statutes pragmatically, to promote efficient outcomes.

In short, although the critics of textualism past and present disagree about the right yardstick, they all argue that judges should interpret statutes in light of principles found outside the law. They maintain that such principles will lead to “better” results than simply following the text.
But textualism isn’t empty of moral content, as some of its critics would suggest. Rather, Textualism is rooted in a distinctive moral commitment—a commitment to be governed by positive laws, namely the Constitution and statutes lawfully enacted by the people’s representatives. We live under the rule of law, not the rule of men. The Constitution is the result of a reasoned moral choice that a society governed by law is best for social flourishing and is therefore worth defending.

My second point is that statutes are enacted within a legal tradition that subsumes political morality. Our mature and sophisticated legal tradition is built on principles of natural law, common law, and concepts rooted in the Roman law. In determining the meaning of a statute, textualists may rightly turn to these legal sources for guidance. Interpreting statutes within our legal context is part of exercising the Article III “judicial Power.” Seen this way, textualists aren’t indifferent to political morality in interpretation; they simply recognize that our legal tradition has translated and disciplined principles of political morality into postulates
of law. A faithful textualist, therefore, must grapple not only with the words on the page, but also with the meaning of those words in the context of our legal traditions.

Those are my two basic points: fidelity to positive law is a profound moral choice, one that Americans made when ratifying the Constitution. And textualism, properly understood, incorporates fundamental principles drawn from our legal customs and foundations. ...

(Via Jonathan Adler at Volokh Conspiracy).


Judicial Power and Judicial Supremacy [Updated]
Michael Ramsey

Mark Tushnet and Aaron Belkin have caused a stir with their self-styled open letter to President Biden, advising that

if and when [the Supreme Court] issues rulings that are based on gravely mistaken interpretations of the Constitution that undermine our most fundamental commitments, the Administration will be guided by its own constitutional interpretations.


The central tenet of the solution that we recommend—Popular Constitutionalism—is that courts do not exercise exclusive authority over constitutional meaning. In practice, a President who disagrees with a court’s interpretation of the Constitution should offer and then follow an alternative interpretation. If voters disagree with the President’s interpretation, they can express their views at the ballot box. Popular Constitutionalism has a proud history in the United States, including Abraham Lincoln’s refusal to treat the Dred Scott decision as a political rule that would guide him as he exercised presidential powers.

Commentary includes this post by Ilya Somin and this post by Howard Wasserman.  Professor Wasserman comments:

Belkin and Tushnet are describing what Kevin Walsh labeled and I have pursued as "judicial departmentalism." The President can and should pursue a constitutional interpretation at odds with the Court's precedent. The Dred Scott reference is the tell. Lincoln argued not that Dred Scott was free or that he could disregard the judgment in that case, but that he could act contrary to the Court's opinion about the rights of enslaved persons or the constitutional validity of the Missouri Compromise.

Assuming the claim is (as Wasserman says) that the President can disregard opinions but not judgments, I think this is probably the right originalist perspective.  At the New Reform Club, Seth Barrett Tillman quotes originalist Michael Stokes Paulsen:

[I]f, with Lincoln, we think this notion of judicial supremacy wrong, then there is nothing wrong with resistance, through all available legal means, to Supreme Court decisions that one in good faith believes improper. The Constitution is not the exclusive province of the Supreme Court. The Court’s decisions are not the Constitution. And neither the Supreme Court nor any other authority properly may declare resistance to judicial decisions to be illegitimate. 

Michael Stokes Paulsen, Lincoln and Judicial Authority, 83 Notre Dame L. Rev. 1227, 1301 (2008).

I would add though that following this course of action is a really bad idea (albeit constitutional), for many of the reasons Professor Somin discusses.  In particular, it's hugely inefficient if the same issue must be relitigated as to every new plaintiff and defendant.  Further, it's easy for the President (or others, such as state authorities) to slip from this position into the claim that they can defy direct court orders.  For this reason we have a longstanding executive practice of following not just the Court's judgment but also its interpretation of the law (while at times seeking to persuade the Court to change its interpretation).  People who doubt the value of this practice should consider how matters might develop under a President with values and temperament very different from their own.

UPDATE:  At Bench Memos, Ed Whelan comments:

I will highlight that, as a critic of what I have labeled the myth of judicial supremacy, I am strongly in agreement with Tushnet on the theoretical point that a president is not constitutionally obligated to accept Supreme Court rulings as final and authoritative determinations of what the Constitution means. As I have argued, the myth of judicial supremacy is flatly contrary to the principle of constitutional supremacy that is the source of the power of judicial review—the power, that is, of courts to review the constitutionality of laws that they are asked to apply. Under a sound departmentalism, the president and Congress should pay due respect to the Court’s constitutional rulings but have their own authority to adhere to their carefully considered interpretations of the Constitution.

Tushnet’s alternative of “Popular Constitutionalism” is very different from a responsible departmentalism. As [Charles] Cooke points out [ed.: here, at NRO], Tushnet, a purported scholar of constitutional law, offers “no comprehensible judicial philosophy” as to what the Constitution means”:

He [Tushnet] provides no rubrics, frameworks, standards, canons, doctrines, or objective arguments of any sort in the course of his proposition. Why not? Because he doesn’t have any.

If I’m understanding the “popular” in “popular constitutionalism” (and perhaps I’m not), Tushnet evidently believes that the people can legitimately alter the meaning of the Constitution by “express[ing] their views at the ballot box” in support of a president who has offered an “alternative interpretation” of the Constitution.


Matt Ford on the Supreme Court's Next Term
Michael Ramsey

At The New Republic, Matt Ford: The Big Story of the Supreme Court’s Next Term.  From the introduction: 

The upcoming term’s docket doesn’t have as many high-profile cases [as last year's] at the moment. But in two notable instances, the justices are poised to tackle another conservative legal movement priority: reshaping the relationship between Congress, the executive branch, and the federal regulatory agencies they oversee. Along the way, the justices might also upend the balance of power between the courts and the elected branches of government.

The court has already scheduled one of the cases for oral argument. In early October, the justices will hear arguments in Consumer Financial Protection Bureau v. Community Financial Services Association of America. [Ed.: see here for SCOTUSblog coverage] ... At issue is whether the CFPB’s funding structure is unconstitutional. ...

Most federal agencies are funded by periodic congressional budgetary appropriations. The CFPB is not. Congress established it as part of the Great Recession–era Dodd-Frank reforms to Wall Street to enforce consumer protection laws for banks, mortgage companies, payday lenders, and so forth. Lawmakers accordingly structured the agency more like a financial regulator in order to insulate it from political interference: Congress funded the bureau by setting a capped amount of money it could draw from the Federal Reserve’s revenue each year. Congress still has the power to adjust the cap, do away with it altogether, or make any other changes it wishes to the CFPB’s structure with future legislation.

And from later on, on the historical debate in the CFPB case:

The CFPB, for its part, argued in its brief for the court that Congress has long adopted unusual funding structures for federal agencies. The Constitution itself only requires regular appropriations for the armed forces, it noted, by specifically forbidding any funding “for a longer term than two years.” That restriction reflected the Framers’ fear of standing armies as a threat to liberty, a concern that was itself rooted in their English forefathers’ experiences during the Cromwellian era.

Beyond that narrow prohibition, Congress has long adopted similar funding systems when lawmakers felt it necessary, the CFPB argued. Early Congresses made lump-sum appropriations to the early federal government, leaving it up to the president to fill in the details while setting a cap on what he could spend. Congress has often made standing appropriations that aren’t subject to periodic renewal, most notably for Social Security payments. And it allowed budgeting through indirect sources: Lawmakers in the early republic initially funded the Post Office, the Mint, and the Patent Office through fees for their services, not through regular appropriations.

The payday-lending industry [challenging the CFPB] disputed that historical evidence and the CFPB’s interpretation of it. It argues in its own brief that the CFPB is some sort of unique threat to American liberty, one that requires a narrower interpretation of the Appropriations Clause and an end to more imaginative approaches to building federal agencies. This viewpoint is likely to find a receptive audience in October. ...

On this issue, see this new article by Christine Kexel Chabot.  

Ford continues:

The other case before the court is about who decides when federal agencies can use their powers. In Loper Bright Enterprises v. Raimondo, the court appears ready to overturn or at least seriously narrow the Chevron doctrine. [Ed.: see here for SCOTUSblog coverage]...

A host of conservative judges and legal scholars have over the years strongly disagreed with that approach to judicial power. They often argue that it is the courts’ inherent responsibility to interpret the scope of federal laws. Deference, they claim, is unwarranted when agencies take maximalist approaches to their own legal authority. This view also dovetails with the conservative legal movement’s overall skepticism of what they call “the administrative state,” a somewhat pejorative term for federal agencies that have the power to issue rules and regulations. ...

The fishing company [Loper Bright] lost in the lower courts, prompting it to ask the Supreme Court to intervene. It presented two questions for the justices to resolve. The first asked whether the lower courts had properly applied the Chevron doctrine when interpreting the law in question. The other requested the court overturn Chevron altogether or “at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.” When the court agreed to hear the case in May, it only took up the second question, putting Chevron in the firing line.

(Via Real Clear Politics.)


Different Views of the First Justice Harlan
Michael Ramsey

Via Jonathan Adler at Volokh Conspiracy, some differing views on the legacy of the first Justice Harlan (whose dissent in Plessy v. Ferguson had an important role in the recent affirmative action cases):

In the New York Times, Jamelle Bouie: No One Can Stop Talking about Justice John Marshall Harlan.

And at Politico, a long response and defense of Harlan by Peter S. Canellos, author of The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero: We Shouldn’t Stop Talking About Justice John Marshall Harlan.

(excerpts from both at the first link above).

In addition to his dissents in Plessy and the Insular Cases, Harlan was a determined advocate of the view that the original meaning of the Fourteenth Amendment incorporated the Bill of Rights against the states.  E.g., Twining v. New Jersey (1908) (Harlan dissenting) (Fifth Amendment self-incrimination); West v. Louisiana (1904) (Harlan dissenting) (Sixth Amendment confrontation clause); Maxwell v. Dow (1900) (Harlan dissenting) (Sixth Amendment unanimous jury); O’Neil v. Vermont (1892) (Harlan dissenting) (Eighth Amendment cruel and unusual punishment); Hurtado v. California (1884) (Harlan dissenting) (Fifth Amendment grand jury).

Further, although Harlan started out focusing on the due process clause as assuring procedural rights such as the grand jury in Hurtado, he later embraced the idea that the privileges or immunities clause incorporated all of the Bill of Rights’ rights (especially, for example, in Maxwell v. Dow).  

My originalist question is: how much does this matter for original meaning?  Harlan wasn't a drafter of the Fourteenth Amendment; his celebrated dissents came long after ratification; and he wasn't able to persuade a majority of the Court (in Plessy, he wasn't able to persuade any Justice).

On the other hand, Harlan (born 1833) was an adult and a politically active lawyer during the ratification debates.  His dissents show, at least, that someone of that era could have the views of the Fourteenth Amendment he did -- that the Constitution is colorblind, that the Bill of Rights applies against the states, etc.  These views, then, are not merely the invention of the modern era, or even of Hugo Black's era. 

I'm not sure, though, that they show any more than that.