« September 2024 | Main | November 2024 »

30 posts from October 2024

10/30/2024

Lawrence Lessig: The Buckley Overreach
Michael Ramsey

Lawrence Lessig (Harvard Law School) has posted The Buckley Overreach (Fifty Years of Buckley v. Valeo (G. Stone & L. Bollinger, eds; Oxford University Press) (forthcoming 2025)) (21 pages) on SSRN.  Here is the abstract:

Under both the Court's current Buckley test and under any plausible version of originalism, contributions to independent political action committees are regulable. SuperPACs are, therefore, not constitutionally required - 14 years of mistaken lower court rulings not with standing. 

I'm sympathetic to this view from an originalist perspective.  At least, I haven't heard a good originalist defense of the campaign-contributions-as-speech argument.

10/29/2024

Eric Segall on Supreme Court Originalism [Updated]
Michael Ramsey

At Dorf on Law, Eric Segall: Of Originalism and the Emperor's New Clothes.  From the introduction: 

... Originalism is the Emperor's New Clothes of constitutional interpretation theories, and the justices are walking around with nothing but their modern sensibilities, values, and politics as the determiners of their personal legal preferences.

I have expressed ideas similar to the ones below in other pieces recently, but it cannot be emphasized and repeated enough that we live in a country where Republican Justices are in full control of an institution that promotes the values of the Republican Party and conservatives/economic-libertarians on the most important issues of our day. Originalism is currently being used by justices, academics, and pundits as the tool to hide partisan, ideological conservative judicial policy-making indistinguishable in method from the overly aggressive decisions of the Warren Court (albeit with a disturbing arc towards injustice instead of justice). 

Here are a few of the far too many major examples that prove this point. ...

UPDATE:  Professor Segall has a further post on the Florida conference here: Originalism as Identity

10/28/2024

Judge Amul Thapar: Hire More Originalist Law Professors!
Michael Ramsey

From Nate Raymond at Reuters: Conservative US judge pushes yanking law school funding until 'originalism' taught.  From the report: 

U.S. Circuit Judge Amul Thapar, an appointee of Republican former President Donald Trump on the Cincinnati-based 6th U.S. Circuit Court of Appeals, lambasted the lack of conservative legal thinking in law schools during a speech late Wednesday in Washington hosted by the Heritage Foundation.

...

Thapar, who had been on Trump's short-list for possible U.S. Supreme Court nominees [Ed.: and I bet he's still on the short list, a pretty high up on it now], and recently authored an admiring book about conservative Supreme Court Justice Clarence Thomas, argued law schools are doing their students a disservice by "failing to teach the prevailing method of constitutional interpretation."

...

He said too often schools are teaching students "postmodern philosophy, critical theory and the need to abolish the carceral state," and that professors "focus too little on understanding cases on their own terms and too much on what political considerations are supposedly motivating a court's opinion."

He said the lack of practical teaching law students receive about how to argue cases before judges like himself who embrace originalism are doing a disservice to overworked trial court judges who would hire them as clerks and to future clients who may hire them as lawyers.
 
He said donors should reconsider their support to law schools "unless institutions show genuine commitment to intellectual diversity," including by hiring more scholars who teach originalist theory.
 
Thapar said to the extent law schools receive government funding, taxpayers should themselves demand change to ensure law professors are not "pursuing their own political agendas" but "producing something of practical value."

(Via How Appealing.)

Josh Blackman at Volokh Conspiracy adds: 

On Wednesday, I was honored to hear Judge Amul Thapar deliver the Story Lecture at the Heritage Foundation. The theme of his lecture is that originalists courts need originalist classrooms. I couldn't agree more. At most law schools, originalism is taught, if at all, as something of a strawman. Professors will introduce it, briefly, and then spend the bulk of time explaining why the doctrine is incoherent. I can count on two hands the number of originalist constitutional law professors in the United States. Law schools are derelict in not hiring more of these scholars. Even if faculties reject originalism, they must recognize that courts are receptive of these arguments, and students need to be trained on originalism.

Agreed, and I would add: I think there's actually a fair amount of teaching about the merits of originalism as a mode of interpretation, either in Constitutional Law courses or in seminars.  Of course a lot of this is not sympathetic to originalism because the professors aren't sympathetic to originalism.  But students can draw their own conclusions.  What's especially lacking, as Judge Thapar recognizes in his emphasis on practical teaching, is teaching about the methodology of originalism -- that is, how to make originalist arguments.  Once students become lawyers, it doesn't really matter to them whether originalism is the right approach to constitutional interpretation. What matters is how to make arguments to judges like Judge Thapar who do think originalism is the right approach to constitutional interpretation.  I doubt much is done to develop this skill in most law schools.

10/27/2024

Nelson Lund: Second Amendment Originalism, the "General Law," and Rahimi's Two-Fold Failure
Michael Ramsey

Nelson Lund (George Mason University - Antonin Scalia Law School) has posted Second Amendment Originalism, the "General Law," and Rahimi's Two-Fold Failure (SMU Law Review, forthcoming) (37 pages) on SSRN.  Here is the abstract:

New York State Rifle & Pistol Association v. Bruen (2022), set out a bold new standard of review for Second Amendment cases. The Court rightly repudiated the  intermediate-scrutiny approach adopted by a strong consensus of the circuit courts after District of Columbia v. Heller (2008). Bruen purported to require that any gun regulation falling within the plain text of the Amendment be upheld only if the government can demonstrate that the regulation is consistent with America’s historical tradition of firearm regulation. United States v. Rahimi (2024) confirmed what was already clear in Bruen: that a majority of the Justices are not prepared to take this seemingly rigorous historical test seriously.

This article considers and rejects an innovative interpretation of Bruen, offered by William Baude and Robert Leider, under which Second Amendment jurisprudence would become a form of common-law constitutionalism. It then argues that a better alternative to Bruen is the more traditional application of means-end scrutiny to advance the primary purpose of the Second Amendment, which is to protect the fundamental natural right of self-defense.

In addition to showing that Rahimi did not apply Bruen faithfully, the article explains why a sound constitutional analysis does not support Rahimi’s decision to uphold the statute at issue in the case.

10/26/2024

Alexander Volokh on Separation of Powers and the Chevron Doctrine
Michael Ramsey

In the CPI Antitrust Chronicle, Alexander Volokh: Goodbye, Chevron: Rediscovering the Virtues of an Independent Judiciary (behind a paywall, but excerpts available here at Volokh Conspiracy).  From the conclusion:

Putting the courts in the driver's seat, and preventing agencies from interpreting statutes in ways that are wrong but not crazy — these are positive moves. Consider, for some perspective, City of Arlington v. FCC, where the Supreme Court confronted whether Chevron applied to an agency's interpretation of the scope of its own jurisdiction or authority. Justice Scalia wrote that the distinction between jurisdictional and non-jurisdictional interpretations is illusory: "No matter how it is framed, the question a court faces when confronted with an agency's interpretation of a statute it administers is always, simply, whether the agency has stayed within the bounds of its statutory authority." For courts, the jurisdictional/non-jurisdictional distinction is meaningful: "Whether the court decided correctly is a question that has different consequences from the question whether it had the power to decide at all." But for agencies, that distinction makes no sense: "Both their power to act and how they are to act is authoritatively prescribed by Congress, so that when they act improperly, no less than when they act beyond their jurisdiction, what they do is ultra vires."

Justice Scalia used that reasoning as an argument in favor of Chevron deference: Because the question of whether the agency acted ultra vires is the same every time the agency adopts an interpretation of its statute, there's no reason to separate out supposedly "jurisdictional" interpretations.

Against the background of his longstanding support for Chevron, this meant Chevron all the time. But one could turn this around and make it an argument against Chevron deference.

The premise and promise of cases like Youngstown is that courts are ready to guard against executive overreach by authoritatively interpreting statutes and holding the government within its proper bounds. The "province and duty of the Judicial Department," says Marbury v. Madison, is, after all, to "say what the law is." But Justice Scalia's reasoning implies that all agency statutory interpretations are created equal; if this is so, then any deference allows the fox to guard the henhouse, and any admission that the agency is wrong-but-not-crazy amounts to acquiescence in ultra vires action.

The Marbury/Youngstown promise of checks and balances works when courts tell the executive what statutes mean — not the other way around. The idea of robust separation of powers sits uneasily with an attitude that the Executive Branch is allowed to be wrong-but-not-crazy. Of course, if there really were a delegation of congressional lawmaking power, that might be acceptable under our current loose non-delegation doctrine; but the idea of anti-delegation canons suggests that such delegations shouldn't be casually allowed as a broad background principle of administrative law.

10/25/2024

Robert Natelson on Article V Conventions
Michael Ramsey

At Law & Liberty, Robert G. Natelson: Busting the Myths About Article V Conventions.  From the introduction: 

aw & Liberty recently featured an excellent exchange between John Grove and Mark Pulliam on state nullification as a way to respond to federal overreach and infringements on liberty.

There is, however, an alternative. The Constitution’s Article V permits constitutional amendments through a state-based process of proposal and ratification. The Framers designed this procedure to enable the states to bypass Congress while correcting or curbing a dysfunctional or abusive federal government.

State legislatures have initiated the procedure on many occasions. In 1788 and 1789, the legislatures of Virginia and New York initiated it to induce Congress to propose the Bill of Rights. Early in the twentieth century, a majority of states employed it to persuade the Senate to agree to the Seventeenth Amendment (direct election of senators). After World War II, states employed it to convince Congress to propose the Twenty-Second Amendment (presidential term limits).

Since that time, however, the federal government has become more dysfunctional and Congress more resistant to reform. Yet the states have never carried through the amendment process to completion.

In 2009, when I began to investigate this procedure, I started with the following hypotheses: that the 1787 Philadelphia convention was the only federal convention ever held; that Congress called it for the sole purpose of amending the Articles of Confederation; that by proposing a new Constitution, the convention “ran away”—i.e., exceeded its power; that an Article V “Convention for proposing Amendments” would be a constitutional convention untethered to the scope of its call; that its composition and protocols are unknown; and that courts rarely, if ever, had adjudicated Article V issues—if they were justiciable at all.

All of these hypotheses turned out to be glaringly false, and the evidence forced me to reject all of them. ...

10/24/2024

Justice Patrick DeWine: Ohio Constitutional Interpretation
Michael Ramsey

Justice R. Patrick DeWine (Ohio Supreme Court) has posted Ohio Constitutional Interpretation (86 Ohio State L.J. (forthcoming 2025)) (31 pages) on SSRN.  Here is the abstract:

There has been a good deal written about why state courts should independently interpret state constitutions.  But not much on how they should do that.  We shouldn’t just assume that the interpretive methodologies for state constitutions are necessarily the same as for the Federal Constitution.  I focus here on some key interpretive issues for the Ohio Constitution, but the issues addressed will be relevant in the interpretation of other state constitutions as well.

 I argue for an original public meaning approach to the Ohio Constitution.  Such an approach is rooted in our earliest caselaw.  And there is a compelling normative case for original public meaning because every provision of the Ohio Constitution was approved by popular vote of the people and because the Ohio Constitution is relatively easy to amend. Most proponents of a “living constitution” focus their arguments on the difficulty of amending the federal constitution, but because the Ohio Constitution can be easily updated by the people, there is no justification for judges to do that work for them.

So how do judges discern original public meaning?  Text is paramount, but what should judges look at when text is not determinative?  I explore several possibilities including: (1) Ohio’s prior constitution and other state constitutions, (2) constitutional convention proceedings and other historical materials, (3) ballot language and other officially promulgated materials, and (4) campaign materials, news articles and other contemporaneous materials available to voters considering a constitutional amendment.

Finally, I take up the problem of how to deal with prior “lockstep precedent” that says that a provision of the Ohio Constitution has the same meaning as a similar provision in the federal Constitution.  I argue that we should only give minimal stare decisis effect to such pronouncements and in most cases should abandon them when text and history demonstrate a different meaning.

Via Jonathan Adler at Volokh Conspiracy.

10/23/2024

Jack Balkin: What Lawyers Want from History
Michael Ramsey

Jack M. Balkin (Yale Law School) has posted What Lawyers Want from History (11 pages) on SSRN.  Here is the abstract:

This short essay, written for academic historians, explains how lawyers who argue and decide constitutional cases use history and what they want from history.

Lawyers’ use of history is both normative and prescriptive. They construct a lawyerly version of the past to tell us what we should do in the present. This lawyerly construction of history has three basic features. First, lawyers use history to establish authority for their own arguments and to undermine claims of authority by their opponents. Second, lawyers channel history through standard forms of legal argument that shape what they see in history and what they look for in history. Third, lawyers construct memory. They are memory entrepreneurs who try to get their audiences to remember the past in particular ways.

Lawyers remake history in law’s image and for lawyers’ purposes. They beat history into shape so that they can use it in their quest for authority. To understand the legal uses of history, one must be clear-eyed about what lawyers want from history. Their practices follow their desires.

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

10/22/2024

An Originalist Defense of the Major Questions Doctrine (Revised)
Michael Ramsey

I have posted a revised and expanded version of my article An Originalist Defense of the Major Questions Doctrine (Administrative Law Review, vol. 76, forthcoming 2024) (43 pages) on SSRN.  Here is the abstract:

Courts invoke an array of “canons” to aid their interpretation and application of legal texts. Their authority to do so remains contested and underdeveloped. The debate over judicial canons has been rekindled by the major questions doctrine (MQD), announced by the Supreme Court in West Virginia v. EPA and related cases. According to the Court, the MQD requires “clear congressional authorization” for administrative or executive agencies to exercise delegated authority over “major policy decisions.”

The MQD has been criticized from various perspectives, including by originalist- and textualist-oriented scholars. This essay, prepared for a roundtable at the C. Boyden Gray Center for the Study of the Administrative State, addresses part of that criticism – specifically, the question whether the Constitution’s original meaning permits courts to adopt clear statement canons like the MQD. It concludes that such canons are sometimes constitutionally permissible (though not necessarily advisable), even if they allow courts to depart from a statute’s most plausible original meaning. It particular, it argues that this judicial practice was deployed by courts in the immediate post-ratification period without material objection, suggesting that it is an aspect of the “judicial Power” vested in federal courts by Article III.

Comments welcome.

10/21/2024

Sixteenth Annual Hugh and Hazel Darling Foundation Works-in-Progress Conference
Michael Ramsey

A message from the Center for the Study of Constitutional Originalism:

On behalf of the University of San Diego's Originalism Center, we are pleased to present the complete list of papers and commentators for the Sixteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference scheduled for February 7-8, 2025 at the University of San Diego Law School.

Randy Barnett (Georgetown) & Larry Solum (Virginia), "Originalism and the Party Presentation Principle"

Commentator: Tara Grove (Texas)

Mitchell Berman (Penn), “Public Meaning Originalism: Right Question, Wrong Answer”

            Commentator: Will Baude (Chicago)

Charles Capps (Arizona State), “Does the Law Ever Run Out?”

Commentator: Jack Balkin (Yale)

Sherif Girgis (Notre Dame), "Unfinished Rights: The Inevitability Of Balancing Liberties Over Time" 

            Commentator: Stephanie Barclay (Georgetown)

Robert Leider (Scalia), "The Individual Right To Bear Arms For Common Defense"

Commentator: Adam Winkler (UCLA)

Stephen Sachs (Harvard), “The Twelfth Amendment and the ERA.”

Commentator: Thomas Schmidt (Columbia)

Ilan Wurman (Minnesota), "The Constitution of 1789: Foreign Affairs and War." 

Commentator: Michael McConnell (Stanford)

The selection of the papers was difficult, as there were a large number of worthy submissions.  In the end, the selections were made based on both individual merit as well as the need to have a balanced group of papers on originalism.

In addition to the authors and commentators, the members of the Originalism Center should also be in attendance.  The members include: Larry Alexander, Laurence Claus, Donald Dripps, Michael Ramsey, Michael Rappaport, and Steven Smith.

We are excited to have such a distinguished lineup of authors and commentators, and again we invite all scholars who are interested in originalism to attend and participate in the conference by reading the papers and joining the discussion. The Center would be happy to pay for the group meals for those attending the whole conference but not giving a paper or serving as a commentator.