The Originalism Blog

Paul Horwitz on Marc DeGirolami on TraditionalismMichael Ramsey

At Prawfsblawg, Paul Horwitz comments on this New York Times op-ed (paywalled) by Marc O. DeGirolami: Something Other Than Originalism Explains This Supreme Court.  From Professor Horwitz's post:

A nice op-ed from my friend Marc DeGirolami on traditionalism, in the New York Times, which I was happy to see gave him enough space to decently lay out his view. Although the topic is not especially timely (I mean that in a good way, on the whole! "Timeliness" is an overrated and distorting quality.), he finds a nice hook by contrasting it with recent statements by Stephen Breyer and Kevin Newsom.

Normally I would say "Don't read the comments," which is the prevailing rule for sensible people everywhere. (And one that adds a sizeable question mark to claims about the democratizing discursive value of social media.) In this case I violated the rule and found it instructive. Of course there is a good deal of inanity. But much of that lay inanity reproduces exactly what ostensibly more educated and elite people who are actually in the law game have been doing for the last several years, in the time-honored tradition of fighting the last war: They give lip service to "traditionalism" or "history and tradition" up front, suggest they will be talking about it in what follows, and then proceed to criticize originalism in great detail. (Although Marc was early to this iteration of legal traditionalism, some scholars have actually started writing interesting articles about traditionalism that are actually about traditionalism, viz. recent pieces by Sherif Girgis, Felipe Jiménez, and Larry Solum. These are the exceptions.) Or they make what they think are the killer arguments against traditionalism--pointing to bad past practices or traditions--without acknowledging that most of them were addressed firmly and rightly by the Civil War Amendments and other constitutional amendments, which are an appropriate way to entrench the societal recognition that some traditions must change; others were killed in the way that bad traditions are, by the accretion of time and practice, a possibility that Mark recognizes more than once in the piece itself; and others may be constitutional but need not be enacted or practiced. (The preponderance of the remaining comments simply adopt the expedient of talking about something else.) 

You need not take any of this as an endorsement of traditionalism as a constitutional practice. I do think however that whether it is a full-on, name-in-neon-lights modality or not, accounting for and invoking tradition is not new (many of our most celebrated First Amendment decisions, for example, engage at least for rhetorical purposes in the invocation and celebration of real or fictive traditions), is probably inevitable, and happens even in the most lively of living traditionalist opinions. And I think Marc has done a valuable job in naming (or renaming) the practice. But I reserve further judgment. What I would like to see, even in a short-ish op-ed and certainly in his book, where I'm sure it will appear, is a deeper dive into all sorts of questions ...

Thomas Moy on Unlawfully Present Aliens and the Second AmendmentMichael Ramsey

At the Blog of the Duke Center for Firearms Law, Thomas Moy: Western District of Texas Judge Strikes Down the Alien-in-Possession Ban.  From the introduction: 

On December 11, the Western District of Texas struck down 18 U.S.C. § 922(g)(5), the illegal alien firearms prohibitor, in United States v. Sing-Ledezma. The case is the latest of many decisions invalidating various prohibited-person restrictions in the wake of Bruen (chief among them United States v. Rahimi, which the Supreme Court is currently considering). Section 922(g)(5) states in relevant part that “[i]t shall be unlawful for any person . . . who, being an alien is illegally or unlawfully in the United States . . . to possess in or affecting commerce, any firearm or ammunition.” Prior to Sing-Ledezma, every federal district and circuit court to consider the prohibition under Bruen upheld the statute. In United States v. Sitladeen, the Eight Circuit, thus far the only court of appeals to address the issue, upheld Section 922(g)(5) on the grounds that illegal aliens are not part of “the people” with Second Amendment rights and thus did not qualify for its protections. Sing-Ledezma reached a contrary result due primarily to two major differences in how the court applied Bruen.

First, Bruen “step one” directs courts to determine if the defendant’s “conduct” falls within the purview of the Second Amendment. Courts have struggled with what exactly the relevant “conduct” is for purposes of the historical-analogical test. In Sing-Ledezma, the government argued that the conduct at issue was being an “unlawfully present alien in possession of a firearm.” This status-based distinction had been utilized previously to uphold the statute, including in Sitladeen. Here, however, the court rejected such an argument. Instead, citing Fifth Circuit precedent, it determined that any attempt to expand the scope of the “conduct” beyond mere possession of a firearm was “unavailing.” Thus, Sing-Ledezma found the conduct “plainly protected by the Second Amendment.”

Second, the way the Sing-Ledezma court conducted its historical analysis differed greatly from other courts. ...

And in conclusion:

Irrespective of the historical analysis, the court’s reasoning at the predicate step, I think, has a gaping hole. Much of the decision is based upon an assumption that concerns about foreigners stepping onto American soil are not new, and, therefore, the absence of similar historical laws renders (g)(5) unconstitutional. Indeed, that assumption is what framed the court’s analysis of the government’s proffered historical analogues. This assumption is made despite the fact that government regulation of immigration, much less the notion of illegal immigration, did not exist when the Second Amendment was ratified. The court acknowledged as much and even commented that, “when the Second Amendment was ratified in 1791, there had been and continued to be a large influx of foreigners coming to the United States without having been previously vetted and without having their belongings searched or weapons seized.” Immigration is therefore unlike domestic violence, which was undoubtedly a societal problem that the American people faced at the Founding. The lack of a codified immigration system, then, indicates that Americans at the Founding did not consider immigration, specifically the vetting of immigrants, to be “a general societal problem.” The court instead seemed to assume a general continuity of concern about foreigners entering the United States, a reading I don’t fully grasp. 

This reasoning, of course, also presumes that Founding-era history best informs our understanding of the Second Amendment. Justice Thomas suggested in Bruen that Reconstruction-era history could also aid in interpreting the Second Amendment. Using this later time period as a reference might change the analysis. For example, the Page Act of 1875 restricted the immigration of Asian, mostly Chinese, women who were considered “undesirable.” The Chinese Exclusion Act followed a few years later, in 1882. These laws could be stronger evidence of a general societal concern surrounding immigration, lending more credence to the absence of firearm-specific regulation.  The government has appealed Sing-Ledezma to the Fifth Circuit, so we haven’t yet seen the end of the case.

(Thanks the Alan Beck for the pointer.)

It's not my area but I find it textually plausible that aliens who are not lawfully admitted are not part of the "people" protected by the Second Amendment.  (That might uncomfortably suggest, though, that similarly they are not part of the "people" protected by the Fourth Amendment either).

 

Anthony Bellia & Bradford Clark: State Sovereign Immunity and the New PurposivismMichael Ramsey

Anthony J. Bellia Jr. (Notre Dame Law School) and Bradford R. Clark (George Washington University Law School) have posted State Sovereign Immunity and the New Purposivism (William & Mary Law Review, Vol. 485, No. 65, 2024) (98 pages) on SSRN.  Here is the abstract:

Since the Constitution was first proposed, courts and commentators have debated the extent to which it alienated the States’ preexisting sovereign immunity from suit by individuals. During the ratification period, these debates focused on the language of the citizen-state diversity provisions of Article III. After the Supreme Court read these provisions to abrogate state sovereign immunity in Chisholm v. Georgia, Congress and the States adopted the Eleventh Amendment to prohibit this construction. The Court subsequently ruled that States enjoy sovereign immunity independent of the Eleventh Amendment, which neither conferred nor diminished it. In the late twentieth-century, Congress began enacting statutes seeking to override state sovereign immunity. In reviewing these acts, the Court established that Congress may abrogate immunity when exercising its powers to enforce the Fourteenth Amendment, but not when exercising its Article I powers. This distinction is consistent with the original public meaning of the constitutional text understood in historical context. Recently, in a surprising turnabout, the Court abandoned this established paradigm by finding that the States agreed to an implied “structural waiver” of their sovereign immunity in the “plan of the Convention” whenever such immunity would “thwart” or “frustrate” the purpose underlying a congressional power that is “complete in itself.” The Court’s new purposive approach to state sovereign immunity is incompatible with the Constitution because it gives courts open-ended discretion to alter the federal-state balance established by the instrument. As Alexander Hamilton explained, because the Constitution “aims only at a partial union or consolidation,” “the whole tenor of the instrument” requires adherence to “the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor.” Under this rule, the “plan of the Convention”—properly understood—divested the States of their sovereign rights only when it did so clearly and expressly or by unavoidable implication. By relying on a strongly purposive methodology to find implied structural waivers of state sovereign immunity, the Court’s new approach disregards this fundamental rule and thus the Constitution itself.

Austin Piatt & Damonta Morgan: The Three Major Questions DoctrinesMichael Ramsey

Austin Piatt (J.D. Northwestern University, Pritzker School of Law) & Damonta Morgan (J.D. Columbia University, School of Law) have posted The Three Major Questions Doctrines (Wisconsin Law Review Forward, Vol. 2023, No. 6, 2024) (19 pages) on SSRN.  Here is the abstract:

After the Supreme Court’s decision in Biden v. Nebraska, we now have three interpretations of the major questions doctrine—or, at least, three different approaches to that doctrine. The "clear statement approach," championed by Justice Gorsuch, relies heavily on the nondelegation doctrine, requiring Congress to speak clearly when empowering agencies. The "contextual approach," espoused by Justice Barrett, eschews reliance on such clear statement principles, believing that resort to these considerations disobeys the commands of textualism. Instead, the contextual approach focuses on the context that surrounds the statute, then applies a healthy dose of commonsense to interpret the limits of a congressional delegation. Finally, the "hybrid approach," as explained and applied by Chief Justice Roberts, mixes nondelegation principles with context and commonsense. While only the hybrid approach has gained the support of a majority of justices, the clear statement and contextual approaches lurk in the background. And as the Court applies the major questions doctrine to a variety of legal issues, which approach wins out will have important implications for future congressional and agency action. This Essay is the first to identify the various strands and explain their consequences for future legislation.

Seems right and helpful to me. My assessment of the major questions doctrine as a clear statement rule is here.

Zalman Rothschild: The Impossibility of Religious EqualityMichael Ramsey

Zalman Rothschild (Bigelow Fellow & Lecturer in Law, University of Chicago Law School) has posted The Impossibility of Religious Equality (Columbia Law Review (2024-2025), forthcoming) (62 pages) on SSRN.  Here is the abstract:

The Supreme Court has recently adopted a new rule of religious equality: if a law denies religious exemptions but provides other exemptions that undermine the law’s interests to the same degree as would a religious exemption, the law wrongfully discriminates against religion. This approach has commanded broad agreement in principle from the entire Supreme Court and from scholars of different stripes. At the same time, some of the doctrine’s defenders have taken issue with how some courts have applied it. This Article’s central claim is that the problem is more fundamental. Any principle of religious equality of the sort the Court has recently articulated is inherently unworkable, in part because it turns on treating that which is religious the same as its secular “comparators.” But religion is not comparable to anything—not in terms of its essence or its value. The current doctrine requires assuming that the category of “religion” is always at least as valuable as all that is “secular”—that is, that religion qua religion is as valuable as, and thus must always be treated as well as, all that is simply “not religion.” This assumption lacks both conceptual coherence and a normative basis. It also renders religious “equality” a contradiction in terms as it establishes not religious equality, but religious superiority.

Our Gerontocracy: Judicial Age and Term LimitsMike Rappaport

Retired Justice Stephen Breyer has recently called for age and term limits for Supreme Court justices.  While I don’t often agree with Breyer, this is an exception. 

I favor term limits for Supreme Court Justices – 18 year terms for each justice applied to future appointments through a constitutional amendment.  This would largely solve the problem of aging justices.  It would also have several other important benefits.   

But such term limits might not be enacted.  If they can’t be enacted, we should adopt a constitutional amendment prohibiting justices from serving once they reach 80 years of age.  It is crude but it is necessary. 

One reason why justices (and Presidents) require age limits is that in the modern world, staffs can do the work for them, allowing them to continue serving during their longer life spans.  The justices (and Presidents) can make the decisions but may not really be competent enough to be doing so.

Philip Hamburger (and Ilya Somin) on Missouri v. Murthy and "Abridging" Free SpeechMichael Ramsey

At Volokh Conspiracy, Philip Hamburger (guest-blogging): Abridging, Not Coercing, Is The First Amendment's Yardstick for Speech Violations.  From the introduction (to a long post):

Is coercion the First Amendment's measure of the freedom of speech? In commenting on Murthy v. Missouri, Prof. Ilya Somin takes the view that "coercion is the appropriate standard." To this he merely adds that "veiled, but credible threats of retaliation by government officials qualify as such coercion."

So far does he take this emphasis on coercion that, from his perspective, there is no First Amendment violation even when the government uses "significant encouragement" to get the private party to concede "active control" over its speech decisions. In the absence of coercion (including credible threats of retaliation) he apparently sees no limit on the power government can exercise over speech if it gets consent.

1. 1. Abridging vs. Prohibiting

The First Amendment, however, has something to say about coercion. Prof. Somin recognizes the argument I make in Courting Censorship, that the First Amendment bars government from "abridging" the freedom of speech, and thus bars reducing that freedom. But he fails to note that the amendment also bars government from "prohibiting" the free exercise of religion. The amendment's contrasting uses of abridging and prohibiting are meaningful. Id, at 254.

The contrast reveals that Prof. Somin's coercion argument misattributes to free speech the standard that the amendment uses for free exercise. The word prohibiting seems to refer to various forms of coercion. So, when the First Amendment instead speaks of abridging the freedom of speech, it would seem to be adopting a different measure of government action for that right. The freedom of speech is violated by a mere reducing of that freedom, whether or not through coercion.

It is therefore unconvincing to suggest that coercion is the measure of freedom of speech. That contradicts the plain meaning of the First Amendment when it contrasts  abridging  and  prohibiting.

Where did Prof. Somin go wrong? He gets to his coercion standard from the word "freedom,"  arguing that if a private party "cut[s] back on speech voluntarily, the freedom of speech has not been abridged." His theory seems to be that you have not had your freedom abridged if you give consent, and you are acting consensually unless you are coerced. Thus, although the First Amendment's very words make clear that coercion is not the standard for freedom of speech, he reintroduces a coercion standard on the theory that it is the opposite of freedom and consent.

But does it make sense to introduce a coercion standard into a right when the Constitution carefully speaks of it in terms of abridging and contrasts that to prohibiting? Such reasoning defeats the Constitution's words and meaning.

Professor Somin responds here: Abridgement, Coercion, and Freedom of Speech: Reply to Philip Hamburger

Richard Re on Pulsifer v. United States and TextualismMichael Ramsey

At Prawfsblawg, Richard Re: Pulsifer v. United States as Permissive Interpretation.   From the introduction:

When someone has a hammer, every problem risks looking like a nail. And when a legal scholar has a theory, every case risks becoming an application of it.

With that disclaimer in mind, I think that Pulsifer v. United States, the Supreme Court’s recent statutory interpretation chestnut, nicely illustrates my view (elaborated here) that statutory interpretation is largely permissive as well as structured by three “basic rules.” 

In brief, Pulsifer involved a statute whose literal text naturally invites a reading that would have helped many criminal defendants. But lots of contextual information made that literal reading seem like an odd fit with the legislature’s apparent goals.

For example, the statute took the following form: “defendants are entitled to resentencing if they do not have A, B, and C.” This construction is most naturally read conjunctively, so that the property of having A-and-B-and-C is what disqualifies someone from the benefit. By analogy, “Don’t drink and drive” means “don’t drink-and-drive,” not “don’t drink” and also “don’t drive.”

But that conjunctive reading has some strange implications in the statute at issue. As the Pulsifer Court argued, for instance, the literal reading “would allow relief to defendants with more serious [criminal] records while barring relief to defendants with less serious ones.” That result seems at odds with the legislature’s evident goals in distributing resentencing opportunities.

This glimpse of the back-and-forth in Pulsifer suggests a conflict between two of the basic rules. First, the literal rule allows courts to enforce a statute’s literal meaning. Second, the mischief rule allows courts to deviate from literal meaning when doing so comports with actual legislative goals. ...

Trevor Morrison on Presidential ImmunityMichael Ramsey

At Lawfare, Trevor Morrison: Moving Beyond Absolutes on Presidential Immunity.  From the introduction: 

Since the Supreme Court granted certiorari to review the presidential immunity issue in Trump v. United States, much has been said about the Court’s choice to wait until late April for oral argument. If the Court ultimately rejects Trump’s claim of immunity, it is not clear whether there will be time for the trial to happen before the November 2024 election. That is a concern. Equally concerning, at least, is the possibility that the Court might hold Trump immune. We cannot discount the possibility that the timing the Court selected for oral argument could reflect that at least five justices are presently inclined to hold Trump immune and thus are not worried about leaving time for a trial. To hold Trump immune would be a grave constitutional error and a travesty of justice. Yet describing precisely why is not as straightforward as some commentators have suggested. In my view, former presidents are immune from federal prosecution for exercising those powers that the Constitution grants to them exclusively, in ways that Congress may not regulate. But the immunity should extend no further, and Trump’s case involves no such exercise of power.

Ian Bartrum on Structural Originalism and the Second AmendmentMichael Ramsey

Ian C. Bartrum (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted Structural Originalism: A Better Theory of the Second Amendment (65 pages) on SSRN.  Here is the abstract:

This article describes and defends an alternative approach to constitutional originalism, and uses this approach to justify a better theory of the Second Amendment. Rather than fixate on the text and hypothesized accounts of original public meanings, it recommends a historical focus on constitutional structure and design. This more holistic use of history asks how the Constitution intended various political institutions to interact when faced with new and unforeseeable policy disputes. It generally does not privilege the normative or ideological judgments of an earlier society but seeks instead to identify the political institutions the Constitution entrusted to make those judgments in a changing world. The Court’s role is thus to preserve the historical structure of substantive political decision-making; not enforce the historical substance itself.

The structural originalist account of the Second Amendment first identifies the relevant natural rights at issue—the right to revolution or political resistance, and the right to private self-defense. The Constitution assigned care of these distinct rights to distinct institutions, each an instantiation of the sovereign People. The constitutional right to revolution fell to the universal militia, while the common-law right to self-defense rested with juries. The original Second Amendment protected the militia’s ability to exercise the right of revolution but left the common law of self-defense untouched. In the years preceding the Civil War, states often regulated arms used in private conflict, and this was not thought to conflict with the constitutional right to bear arms. More radical abolitionists began to push for an “individual” right to revolution, but this was far from the mainstream view when the War began. In the years following the War, Congress enacted legislation and the Fourteenth Amendment to combat ongoing racial subordination in the South. The language of those enactments evinces a clear desire simply to end racial discrimination in state laws, including in the common law of self-defense. Contemporaneous constitutional commentary and the Court’s decision in United State v. Cruikshank confirms the states’ continuing authority to regulate private violence and the scope of common law self-defense-—so long as blacks and whites are treated alike. Structural originalism thus produces a better, common-sense account of the Second and Fourteenth Amendments; one which permits states to regulate self-defense and the weapons of private violence in racially nondiscriminatory ways.