The Originalism Blog

More from Josh Blackman on the Presidential Avoidance CanonMichael Ramsey

At Volokh Conspriacy, Josh Blackman: The Clear Statement Rule and the Major Question Doctrine As Substantive Separation of Powers Canons (expanding on his initial post here and my comment here).  From the introduction:

Both the clear statement rule, and the major question doctrine, are substantive canons to avoid potential violations of the separation of powers. Justice Gorsuch explained in West Virginia v. EPA that the major question doctrine is best viewed as an avoidance canon in service of the non-delegation doctrine. That is, the Court will require a clear statement that Congress intended to empower an agency to resolve a "major question" in order to avoid deciding if such a broad delegation would even be constitutional. Likewise, with the Presidential Avoidance Canon, as I described it during the Trump years, the Court will require a clear statement that Congress intended to limit the President's power in order to avoid deciding if such a limitation on the President's power would violate Article II.

The clear statement rule and the major question doctrine both function as substantive separation of powers canons in order to avoid deciding if federal actions are unconstitutional.

I think this is probably correct as an assessment of how Justice Gorsuch, and perhaps other members of the Court, see the matter.  But it still leaves the question of whether the constitutional avoidance canon is consistent with originalism (about which I have some doubt).  Scalia & Garner endorse what they call the "constitutional doubt canon" (pp. 247-255 of Reading Law) but do not offer much of an originalist defense.

Jud Campbell: Four Views of the Nature of the UnionMichael Ramsey

Jud Campbell (Stanford Law School) has posted Four Views of the Nature of the Union (47 Harvard Journal of Law and Public Policy 13 (2024)) (25 pages) on SSRN.  Here is the abstract:

This Essay summarizes four Founding-Era views about the nature of the Union and the key interpretive implications that followed from those views. In doing so, it emphasizes the importance of social-contract theory and engages a recent scholarly debate over the influence of the law of nations on Founding-Era constitutional interpretation. Without taking a position about which view of the Union was correct, the Essay aims to illuminate the range of interpretive possibilities, including ones informed more by social-contractarian premises than by the law of nations.

And from the introduction (footnotes omitted):

One of the most enjoyable yet challenging aspects of studying American constitutional history is that the earlier generations often did not share our vision of constitutional law. For us, the written Constitution grounds constitutional argument. We treat the text as the source of our fundamental law, and then as Justice Scalia would say, the rest is “a matter of interpretation.”

In taking this approach, we have mostly rejected other ways of grounding constitutional law—including through invocations of social-contract theory, natural rights, and natural law. These are things that might come up in a philosophy class, but they have little relevance to legal doctrine. Not coincidentally, we also have mostly moved beyond the fights over sovereignty and the “nature of the Union” that dominated the first century of American constitutional debate.

But Americans from the Founding through Reconstruction did not share this perspective. For them, the text mattered a great deal. But there were deeper foundations—and more fundamental sources of authority—than the written document. Americans thus often debated how the text of the Constitution fit within a broader matrix of fundamental law. This was especially true of federalism disputes, which frequently turned on social-contractarian assumptions about the locus of sovereignty within the federal system. So in order to think historically, we need to imagine the nature of constitutional law—and the grounding of constitutional law—in these older ways.

The First Criminal Trial of an ex-POTUSAndrew Hyman

The first criminal trial of an ex-President is ongoing in Manhattan.  When the district attorney for Manhattan issued the indictment in April of 2023, he explained that Trump was being indicted “for falsifying New York business records in order to conceal damaging information and unlawful activity from American voters before and after the 2016 election.”  Yet all of the 34 counts explicitly rely upon action Trump allegedly took after the election, at which time American voters could not have been influenced much by the allegedly incorrect business records, and Trump had less motive to influence voters.

The Constitution explicitly gives state legislatures some power to regulate presidential elections: “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….”  But that power wanes after the electors are chosen, and is therefore subject to greater preemption by federal statutes, as well as by federal interpretations of those statutes.

All of the 34 counts rely upon a New York statute (“175.10”) which says this:

A person is guilty of falsifying business records in the first degree when he commits the crime of falsifying business records in the second degree, and when his intent to defraud includes an intent to commit another crime or to aid or conceal the commission thereof.  Falsifying business records in the first degree is a class E felony.

Without a conviction on first degree falsification, the statute on second degree falsification would only have been a misdemeanor, and also would have been barred under a statute of limitations.

The indictment did not explicitly say what the “another crime” was, even though intent to violate “another crime” is a key element in every one of the 34 counts.  Each of the 34 counts does allege “intent to defraud” but it doesn’t seem like there was much of a motive given that, by 2017, the election had already happened.  In any event, the indictment left the “another crime” unspecified.

As you might expect, Trump filed a motion to dismiss the indictment, in September of 2023.  After briefing by both parties, the judge in the case declined to dismiss, in a 30-page decision and order dated February 15, 2024.  This decision said (at p. 11) the state had offered “four theories” about what the words “another crime” meant in the indictment, and the judge deemed the first three of those theories to be valid even though the indictment did not specify any of them: (1) intent to violate federal election law; (2) intent to violate state election law; and/or (3) intent to violate state tax law. 

The judge emphasized that the state statute quoted above only requires “intent” regardless of whether the “another crime” is actually carried out.  On the other hand, the judge did not address the difference between knowledge and intent (“knowingly” versus “intentionally”), and the state legislature very likely did not intend to put anyone in jail for decades who merely knew about commission of a crime without intending it.  For example, if a tax law was technically violated without costing the state any money, a defendant may well have known about the violation without intending it.  Likewise, the judge did not address whether the absence of commission of a crime can be evidence of whether the crime was intended; it surely can, if it’s a tax law, an election law, or any other law.

As to election law, it’s unlikely Trump violated it by paying hush money.  Former vice-presidential candidate John Edwards paid hush money, but a federal court said it was legal.  One might ponder whether the motive for the hush money was to protect Trump’s family or instead to win the election, but Trump would have faced immense negative legal consequences if he had paid the hush money using campaign funds.  The money that Trump allegedly misreported or misclassified in 2017 was money paid by him, for which he was indicted, but candidates are not limited in the amounts they can spend on their own campaigns (or on their own personal expenses).

I’m not a New York lawyer, but it looks to me like a weak indictment that probably should have been dismissed, and that will probably strengthen  Trump’s related case for presidential immunity. Incidentally, the right to a grand jury is one of the few provisions in the Bill of Rights that has not yet been applied against the states; as I wrote on this blog in 2018, it very likely should be.

A few years ago, in 2017, Yale Law Professor Stephen L. Carter wrote the following:

One might argue, plausibly, that political candidates are entitled to a stronger presumption of innocence because they are more likely than the rest of us to be the target of spurious charges. Fair enough.

 

Earlier this month, on April 25, the U.S. House Judiciary Committee issued an interim report asserting that the current charges against Trump in Manhattan are spurious.  They do seem weak.

Josh Blackman on the Oral Argument in Trump v. United StatesMichael Ramsey

At Volokh Conspiracy, Josh Blackman: Presidential Bribery and the Clear Statement Rule in Trump v. United States: Revisiting Issues From The First Trump Impeachment and the Mueller Investigation.  From the introduction:

[On 4/25] the Supreme Court heard oral argument in Trump v. United States, the presidential immunity case. Much of the argument concerned issues left unresolved during the Trump presidency. 

First, during the Mueller investigation, it was alleged that Trump violated the federal obstruction of justice statute. I, and others, countered that a criminal statute should only apply to the President if there is a "clear statement" to that effect. In other words, a general criminal statute should not be read to apply to the President. 

Second, it is true that in 1995, the Office of Legal Counsel suggested in an opinion that the federal bribery statute, 18 U.S.C. § 201, would apply to the President, even though there was no "clear statement." But bribery is somewhat unique in that the Constitution expressly enumerates bribery as a ground of impeachment. It is difficult to then argue that the President has some sort of constitutional authority to engage in impeachable conduct. ...

I am particularly interested in the supposed clear statement rule, with my new-found interest in the originalist aspects of substantive canons.  On the clear statement rule, Professor Blackman comments:

The most interest in the clear statement rule came from Justice Kavanaugh. I think of all members of the Court, Justice Kavanaugh has perhaps the most insights on what it means to prosecute a President. Justice Kavanaugh has seen this issue from both sides. Earlier in his career, he worked under Independent Counsel Ken Starr. And later in his career, he served as a White House attorney under President George W. Bush. I remember when there were calls to charge members of the Bush administration with war crimes and worse. Kavanaugh stated, "this case has huge implications for the presidency, for the future of the presidency, for the future of the country." He is exactly right.

Kavanaugh asked John Sauer, Trump's counsel, if "a clear statement in the statute covering the president" is required "if the president's official acts are going to be criminalized." Kavanaugh later observed that "a clear statement in the statute referencing the president" was needed "so that the president is on notice and can conduct himself or herself accordingly." Another rationale for the clear statement rule, Kavanaugh explained, is "to make sure Congress has thought about" what it would mean to subject the President to criminal liability. 

That formulation appears to regard the (supposed) clear statement requirement as a substantive canon -- that is, the Court will construe a statute lacking a clear statement narrowly not to apply to the President, even if absent the clear statement rule the best reading of the statute's text would apply it to the President.  I think that is correct, and it makes the presidential nonapplicability canon (if we can call it that) parallel a view of the major questions doctrine as a substantive canon. 

Samuel Joyce: Testing the Major Questions DoctrineMichael Ramsey

Samuel Joyce (Stanford JD '23) has posted Testing the Major Questions Doctrine (43 Stan. Env't L.J. 45 (2024)) (45 pages) on SSRN.  Here is the abstract:

The Supreme Court’s recent decision in West Virginia v. EPA announced the arrival of the major questions doctrine, a substantive canon of construction that bars agencies from resolving questions of “vast economic and political significance” without clear statutory authorization. While the contours of the doctrine are still murky, early predictions suggest it will function to substantially curtail the scope of the administrative state. Despite these significant implications, the Court has not been clear about the doctrine’s origins or purpose. Some defenses of the doctrine have sought to justify it as an intuition about how Congress writes statutes, a kind of linguistic canon; others, including Justice Gorsuch, attempt to root the doctrine in the Constitution, grounding it in the nondelegation doctrine.

The distinction matters because constitutionally inspired doctrines have more bite than linguistic canons. If the major questions doctrine is truly just another linguistic canon, it may fit within the Court’s ordinary process of statutory interpretation and yield to other canons in any case; as a constitutional doctrine, by contrast, it allows the Court to deviate from the text and adopt narrower readings of otherwise unambiguous statutes. This Note considers and tests the major questions doctrine’s link to the nondelegation doctrine, arguing that the major questions doctrine does not consistently serve to advance nondelegation.

The argument proceeds in three steps. First, this Note contends that the major questions doctrine must apply to the President, addressing a recent circuit split on that issue. Second, this Note explains why the major questions doctrine may function to bar the elimination of national monuments, taking as a case study President Trump’s elimination of the Bears Ears National Monument in Utah. Notably, given the history of the statute and the textual authorization to create monuments, the major questions doctrine is far more likely to bar the elimination of a national monument than the creation of one. Finally, this Note turns to nondelegation, which is more likely to be used to challenge the creation of monuments. The nondelegation doctrine does not examine “majorness” or demand clear statutory authorization; as a result, its application bears little resemblance to the major questions inquiry, likely functioning to bar the creation as opposed to the elimination of monuments.

This case study shows that the major questions doctrine and nondelegation doctrine may, as applied to the same statute, produce opposing outcomes. If the major questions doctrine functions to advance the nondelegation doctrine, this disparity should give its defenders pause. Whatever the doctrine’s merits as a linguistic canon, a doctrine so untethered from the constitutional values that ostensibly grant it its legitimacy has little merit as a substantive canon.

Andrew Hyman on Equal Protection [Video]Michael Ramsey

Here is co-blogger Andrew Hyman speaking on equal protection at the Southern University Law Center (along with Professor Jason Thrower):

[link]

Jack Goldsmith on Presidential ImmunityMichael Ramsey

In anticipation of Thursday's oral argument, Jack Goldsmith (Harvard) has a long post at Lawfare: The Core Issues in Trump v. United States: One Road Map.  From the introduction:

This essay provides a road map of the core legal issues in Trump v. United States as I see them. It is just a road map; I do not opine on how the Court should resolve most of the issues in the case. I am pretty sure that the Court will reject former President Trump’s immunity claim. But how the Court crafts its immunity analysis, and what collateral issues it addresses along the way, are enormously important to the impact of the Court’s decision on future presidencies. This impact will, I think, be a central issue at oral argument and a central consideration in the drafting of the opinion. I address the impact issue at the end of this lengthy piece, after first laying out how I think the various legal doctrines in the case fit together.

And from later on:

To understand what is at stake in the case, one needs to unpack three issues and understand their relationship to one another.

First, do the four criminal statutes Trump allegedly violated apply to the president? The § 1512 crimes apply to “whoever” does the bad acts; and §§ 241 and 371 apply to “persons” who commit the offenses. The applicability issue is whether these generally worded statutes, properly construed, govern official presidential action. A second-order applicability question is which official presidential actions do they apply to—all of them?; some subset, and if so, which one?; acts in which presidential power is not unduly burdened? (Another applicability issue, not examined here, is the question raised in Fischer v. United States on whether and how § 1512 applies to Jan. 6 events.)

Second, if the statutes govern some presidential conduct, are they constitutional, and if so, to what extent? This constitutionality issue is whether Congress has the authority to regulate the presidential actions in question, which reduces in this context to whether certain presidential actions implicate exclusive presidential power that Congress cannot regulate.

Third, if the statutes apply to the president and are constitutional, does Trump have immunity from prosecution for their violation? This immunity issue is the one formally before the Court. A second-order immunity question concerns which presidential actions should receive immunity. For example, assuming some immunity attaches, does it attach to all official acts, or a subset? And how would one determine which acts are official and which are private?

(Via Ed Whelan at Bench Memos.)

Lawrence Solum: Original Public MeaningMichael Ramsey

Lawrence B. Solum (University of Virginia School of Law) has posted Original Public Meaning (Michigan State Law Review, Vol. 2023, No. 807, 2023) (42 pages) on SSRN.  Here is the abstract:

“Original public meaning” has become increasingly important in constitutional discourse. This Article investigates the nature of original public meaning in three steps. First, each word in the phrase “original public meaning” is explicated and clarified. The word “original” represents the idea that the meaning of the constitutional text is fixed at the time each provision is framed and ratified. The word “public” signifies that the relevant meaning is ordinary meaning, the understanding of the text conveyed to the public at the time each provision was framed and ratified. The word “meaning” refers to the set of ideas (concepts and propositions) that constitute the communicative content of the constitutional text. The second step situates original public meaning in the context of normative constitutional theory, explaining its role in both Public Meaning Originalism and nonoriginalist constitutional theories. The third and final step investigates the foundations of original public meaning in the philosophy of language and theoretical linguistics, via an exploration of the distinctions between (a) speaker’s meaning and sentence meaning, (b) semantics and pragmatics, (c) sense and reference, and (d) conceptual meaning versus prototypical meaning.

Each of the three steps contributes to the articulation of a conception of original public meaning that aims at conceptual clarity, precision, and theoretical depth. The original public meaning of the constitutional text is the communicative content (the set of concepts and propositions) that was conveyed to the public at the time each provision was drafted, proposed, and ratified. Both semantics (the meaning of words and phrases) and pragmatics (meaning conveyed by context) play essential roles in the complex multistage process by which constitutional communication occurs. For public meaning originalists, the original public meaning of the text ought to bind constitutional actors, including judges, legislators, and executive officials. Sometimes, the recovery of original public meaning is relatively easy—the absence of linguistic drift, common sense, and the immediate context make the meaning of the constitutional text readily accessible to contemporary readers. But sometimes, the original public meaning of the constitutional text is difficult to discern, requiring both a deep reading of the constitutional record and careful application of the methods of historical linguistics.

Highly recommended!  Download it while it's hot!

Richard Epstein: The Natural Law Origins of Private and Public LawMichael Ramsey

Recently published, in the New York University Journal of Law and Liberty, Richard A. Epstein (NYU School of Law), The Natural Law Origins of Private and Public Law (17 N.Y.U. J. L. & Lib 205 (2024)). Here is the abstract:

This article attempts to counter the widespread skepticism that surrounds any appeal to natural law principles, starting with Roman law at one end and the appeal to general law under Swift v. Tyson on the other. It steers a systematic middle course between moral absolutism, which treats all relationships as fixed and immutable, and modern realist positions that insist the infinite variety of legal approaches to most legal problems proves that there is no solid core to either natural law or general law. The natural law positions set out the basic relationships for marriage and family, for alluvion and avulsion of rivers and streams, for the formation of agreements, and for the transfer of various forms of property under the private law. But at that point, these rules may be modified as needed to create strong Pareto improvements by the introduction of various formalities that improve the security of transactions or, more substantively, which overcome key holdout issues that can arise, for example in the upper airspace on the one side or with caves on the other.

These principles can carry over to public law as well. Systems of taxation have to be structured (with flat taxes) as the best way to avoid theft  from one group to another, and also for eminent domain powers when the public must be compensated, unless under the police power they are designed to prevent wrongful conduct from the party regulated, as under the common law of nuisance, which is not subject to infinite variation. Similarly on procedural matters, the two Roman principles of “hear the other side” (audi alterem partem) in cases before a neutral judge and “no one shall be a judge in his own cause” (nemo judex in causa sua) have to apply universally whereas other fact finding devices, for example juries, are subject to wider variations. These principles were tested in the Insular Cases where this norm held in check any American impulse to dictate legal practices and norms to conquered groups. This rule that explains why the Supreme Court was correct in refusing to hear the case intended to compel American Samoa to force federal citizenship on indigenous peoples who refused to have it. These basic natural law principles, most notably the rule that no one should profit from his own wrong explains, contrary to today’s understandings, why the common principle of birthright citizenship applies only to the offspring of legal aliens, but not illegal ones.

In dealing with the transition between Swift and Erie Railroad v. Tompkins, the key insight is that Swift was correct insofar as it used a set of general (i.e., neutral) principles to decide disputes that took place across state lines, but not for those that took place solely within a given state. Thus, using general principles for negotiable instruments and boundary disputes eliminates local favoritism and gravitates to the best of common practices. But there is no reason to use these common principles for complex private disputes (rules for mortgages or local antitrust laws) where the general law (as expanded before Erie) often slights local interests, such that the key decision in Clearfield Trust v. United States reestablishing general common law for negotiable interests and Hinderlider v. La Plata River & Cherry Creek Ditch Co. with respect to boundary disputes, pushed the law back in its correct direction.

It is only by patiently working through all of these ancient and modern, private and public law cases, the conceptual unity of our basic legal system can be defended.

Among other things, the article is notable in defending the Insular Cases and a limited view of birthright citizenship. (I've taken an opposing view on both points on originalist grounds).

Thanks to Neil Weare for the pointer.

SOMEWHAT RELATED: From NBC News, Lawmakers seek disavowal of Supreme Court's racist 'Insular Cases' that limited rights of people in U.S. territories - A series of early-1900s Supreme Court rulings included discriminatory language and helped ensure that people in U.S. territories wouldn't have the same rights as other Americans (quoting Neil Weare, among others).  (Via How Appealing.)

Chahat Gupta on Originalism and Textualism in IndiaMichael Ramsey

Chahat Gupta (O.P. Jindal Global University - Jindal Global Law School) has posted Indian Perspective: Textualism vs Originalism (6 pages) on SSRN.  Here is the abstract:

Subba Rao upheld the meaning of true democracy by championing fundamental rights in various judgement of 1960s-1980s. His dissenting opinion in Calcutta Gas company vs State of West Bengal drew extremities of federalism with textual interpretation of law. Justice Nariman in his recent book called Subba Rao “The man imbued with fundamental rights”. His pre-eminent approach towards federalism and fundamental rights interpretation was based only on textualism. Textualism is literal interpretation of law which only replies on meaning of the text and not the purpose of the text. But going behind what text does not suggest Prima Facie can be very risky as it may lead to multiple interpretation of texts.

The doctrine of interpretation of statutes by Courts has been a major focus of legal debate. Whether judges are to look solely to the bare language of an enactment and further logically deduce its application in simple syllogistic fashion as legal formalists often advocated, or whether it was more efficient to inquire into the meaning of the statute and the intention of the constitution makers to deduce its meaning have been questions at the forefront of constitutional interpretation debates. A country with a federal structure necessitates that statutory interpretation is done in a manner which is cohesive with the meaning of federalism whilst also delivering the best possible solution. Although schools of statutory interpretation vary on what factors should be considered while interpreting statues, all approaches put a great deal of emphasis on the language and structure of the statute itself. According to U.S. Supreme Court Justice Antonin Scalia, judges resist the urge to apply legislative intention and legislative history in interpreting statutes . His stance on the matter is that it is incompatible with democratic federal government to allow the meaning of a statute to be determined by what the judges ‘think’ the Constitution makers meant rather than by what the legislature promulgated. Scalia promotes the interpretive legal nuance of interpreting statutes and regulations by focusing on the text itself. He proposes that attention must be paid to the Constitution’s original meaning. His idea of textualism identifies the law with its original linguistic meaning at the time it was enacted. However, common law often assumes that rules embody principles which can be qualified by other principles, which can be expanded upon, and which evolve over time. Scalia’s rejection on such interpretation lies in the fact that this inevitably gives judges more power than the clear rule itself. Justice Stevens on the other hand explicitly favors a case- by- case interpretation of statutes, rather than precise, principles content.