The Originalism Blog

Elias Neibart: Teleology as an Originalist ToolMichael Ramsey

Recently published, in the New York University Journal of Law and Liberty (vol. 18, 2024), Elias Neibart: Teleology as an Originalist Tool.  Here is the abstract:

To understand what something is, we have to first understand its ultimate end.  That’s a simple principle.  And it’s one we intuitively accept in our everyday life.  When we’re building a piece of furniture, we don’t just read the instructions—we first peek at the box to figure out how the piece of furniture should look when it’s completed.  We do that because we know that by looking at the ultimate end of our task, we will better understand the discrete instructions and steps before us.  This practice—of identifying something’s ends to better understand its essence—is not new. And it has a name: teleology.

Teleology may offer something to those trying to uncover the original meaning of the United States Constitution.  Just as seeing the completed piece of furniture helps us understand the building instructions, pinpointing the ends of the Constitution might help us interpret its sparse text.

So, this Article makes a modest argument: Teleology has played and, perhaps, could still play a role in our interpretation of the Constitution.  In other words, historically, when it came to the Constitution, teleology was in the mix of interpretive tools.  And, today, it could similarly factor in as one way—of many—to help us interpret the Constitution.  This Article, therefore, makes two narrow arguments, one historical and the other theoretical.

As a historical matter, teleology has roots in American constitutional history.  When the framers were drafting the Constitution and later interpreting it, they invoked teleology.  In fact, its use has persisted, being employed just a few terms ago at the Supreme Court. 

As a theoretical matter, teleology might still be able to serve as an originalist tool.  Indeed, its use is consistent with originalist theory.  For an Original Methods Originalist, teleology can be understood as an original interpretive rule that was employed by the ratifying public as they read the Constitution.  For Public Meaning Originalists, teleology might just constitute another type of contextual enrichment.  Using teleology is also consistent with how we communicate in everyday life; we often consider the original ends of a thing when trying to understand its essence.  At bottom, then, identifying the Constitution’s original teloi may help interpreters better enter the minds of the ratifying public and understand the text just as they did.  

In these respects, teleology could advance—not undermine—the goals of modern-day originalism.  At first glance, one might think that originalists would or should reject its invocation.  Teleology, like purpose, might strike an originalist as too indeterminate.  But originalists are committed, by their own principles, to think about teleology, too.  Doing so may help interpreters better honor the original meaning of the Constitution.

Alli Orr Larsen: History's Identity CrisisMichael Ramsey

Alli Orr Larsen (William & Mary Law School) has posted History's Identity Crisis (78 SMU L. Rev., forthcoming 2025) (33  pages) on SSRN.  Here is the abstract:

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges.  This article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past.  Is it traditional legal reasoning – weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about – conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of fact-finding – generalized and closer to policy – such that we want appellate judges to make the calls after studying in the law library or digesting dozens of amicus briefs?  This matters because each alternative identity carries significant practical litigation consequences, and – because of those consequences -- the players are motivated to manipulate the different labels in strategic ways.
 
I call for some nuance and “bottom line thinking:” if what really matters is who makes the decision and under what conditions, then we should ask that question directly and specifically rather than getting hung up in definitions and labels. This article assumes a good-faith judge confronting a history-based test in the Second Amendment context, and then offers a way to help: by detangling this identity crisis, exploring the implications of each alternative identity, and then offering preliminary thoughts on a possible path forward.

The Twentieth Amendment and the Electoral Vote Count [Corrected]Michael Ramsey

In The Hill, Evan A. Davis & David M. Schulte suggest a way Democrats could derail the counting of the electoral votes on January 6: Congress has the power to block Trump from taking office, but lawmakers must act now.  From the core of the argument (after first asserting that President-elect Trump is disqualified from the presidency by Section 3 of the Fourteenth Amendment:

…[S]pecific legislation designed for this situation already exists. The Electoral Count Act was first enacted in 1887 and later amended and restated in 2022. That statute provides a detailed mechanism for resolving disputes as to the validity of Electoral College votes.   

The act specifies two grounds for objection to an electoral vote: If the electors from a state were not lawfully certified or if the vote of one or more electors was not “regularly given.” A vote for a candidate disqualified by the Constitution is plainly in accordance with the normal use of words “not regularly given.” Disqualification for engaging in insurrection is no different from disqualification based on other constitutional requirements such as age, citizenship from birth and 14 years’ residency in the United States.  

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president.

I think, however, that the authors are wrong to say that an electoral vote for a disqualified person is not “regularly given,” and their saying (without citation) that it’s “plainly in accordance with the normal use of words” doesn’t make it so.  A vote not “regularly given” more “plainly” refers to one given illegally (e.g., contrary to state law, or as a result of bribery), involuntarily (under duress or mistakenly), or by an unauthorized person.

In contrast, a vote lawfully and deliberately given by a duly appointed elector to a person not (currently) eligible for the presidency is “regularly given” – that is, given in accordance with applicable laws and procedures.  The Constitution does not prohibit a person who is ineligible for the presidency from being a candidate – perhaps, for example, in the hopes that the ineligibility will be lifted.  Nor does the Constitution prohibit an elector from voting for a person who is ineligible for the presidency (again, with the thought perhaps that the ineligibility would be lifted).  The Constitution only intervenes if a person who is ineligible attempts to take office as President.

Section 3 of the Fourteenth Amendment shows how such a vote might be regularly cast.  Section 3 allows Congress (by a two-thirds vote) to lift a disqualification imposed by the Section for engaging in insurrection. (And historically Congress has exercised this power.)  So assuming a person is unquestionably disqualified by Section 3: it would still be entirely appropriate for that person to seek the presidency, for electors to vote for that person, and for Congress – if that person won a majority of electoral votes – to lift the Section 3 disqualification.  There is no constitutional requirement that the disqualification be lifted before the electoral votes are cast, rather than after.

Of course, in this situation Congress might not lift the disqualification, in which case the disqualified candidate would be constitutionally barred from taking office.  But that does not mean votes for that person were not “regularly given” – only that they subsequently turned out to be ineffective.

The Twentieth Amendment – which has been overlooked to some extent in the discussion – confirms this analysis and provides a remedy if an ineligible person is elected.  It states:

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified… (emphasis added)

Thus the Amendment “plainly” (if I may use that term) contemplates that an ineligible person can become President-elect, and that that person becomes President if the ineligibility is removed.  And that being so, there’s nothing inappropriate (or “not regular”) about voting for an ineligible person.  At least in the case of a Section 3 ineligibility, such a vote could be made in the expectation, or at least the hope, that Congress would lift the ineligibility.

I also think that Section (e)(2) of the Electoral Count Act, which the authors rely on to make Kamala Harris President after a challenge to the electoral votes, is unconstitutional.  [Ed.: But see correction below.] As they describe it:

To make an objection under the Count Act requires a petition signed by 20 percent of the members of each House. If the objection is sustained by majority vote in each house, the vote is not counted and the number of votes required to be elected is reduced by the number of disqualified votes. If all votes for Trump were not counted, Kamala Harris would be elected president. 

This is indeed what Section (e)(2) indicates, but it’s flatly contrary to the Twelfth Amendment, which says:

The person having the greatest number of [electoral] votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.  (emphasis added)

Thus, if an elector is appointed but that elector’s vote is not “regularly given,” this does not reduce the number of votes needed to be elected.  It is a majority of the electors appointed not (as the Electoral Count Act says) a majority of the votes given, that the Twelfth Amendment requires for election.  And Congress cannot provide for a lesser number of votes than the Constitution requires.

In sum, the authors are wrong on two counts.  An electoral vote for an ineligible candidate is “regularly” (though perhaps futilely) given under the Twentieth Amendment, and so cannot be challenged under Section (d)(2)(B) of the Electoral Count Act.  And even if Congress (wrongfully) rejected all of President-elect Trump’s votes on this ground, the result would be that no candidate received a majority of the “whole number of electors appointed” – which under the Twelfth Amendment results in the House of Representatives choosing the President.

CORRECTION:  As to Section (e)(2), Derek Muller (Notre Dame) writes:

There's an error in that Hill piece, which you unfortunately rely upon. Here's 15(e)(2):

 

If the number of electors lawfully appointed by any State pursuant to a certificate of ascertainment of appointment of electors that is issued under section 5 is fewer than the number of electors to which the State is entitled under section 3, or if an objection the grounds for which are described in subsection (d)(2)(B)(ii)(I) has been sustained, the total number of electors appointed for the purpose of determining a majority of the whole number of electors appointed as required by the Twelfth Amendment to the Constitution shall be reduced by the number of electors whom the State has failed to appoint or as to whom the objection was sustained.  

 

And here's 15(d)(2)(B)(ii):

 

(ii) Grounds for objections.—The only grounds for objections shall be as follows:

 

(I) The electors of the State were not lawfully certified under a certificate of ascertainment of appointment of electors according to section 5(a)(1).

 

 (II) The vote of one or more electors has not been regularly given.

 

As you can see, 15(e)(2) does contemplate reducing the denominator required for a majority. But it expressly provides that it is only in those cases (a) where a state has failed to appoint its full slate of electors (e.g., New York in 1789, where it appointed zero), or (b) where the objection is under (I), not "lawfully certified." For an objection of not "regularly given," it is (II), and would not include a reduction in the denominator. The writers of this Hill piece (no particular experts themselves) were quite sloppy in interpreting the new, carefully crafted ECRA.

 

Professor Muller is right, of course.  That's what I get for relying on The Hill instead of studying the statute closely myself. Apologies. (In particular, apologies to drafters of the ECRA.)

 

So as actually written, Section (e)(2) is consistent with the Twelfth Amendment, because it only reduces the number of electoral votes needed for election when there is a defect in the appointment of an elector, not when there is a defect in a vote by a duly appointed elector.  My conclusion should have been:  If Section (e)(2) said what the authors of The Hill's essay say it said, it would be unconstitutional.

Orin Kerr on Emergency EntryMichael Ramsey

At Volokh Conspiracy, Orin Kerr: New Cert Petition on Emergency Entry: What Was the Common Law Rule? From the introduction:

A cert petition was recently filed at the Supreme Court in Case v. Montana on the Fourth Amendment standards for entry into a home to help people in an emergency.  The question presented:

Whether law enforcement may enter a home without a search warrant based on less than probable cause that an emergency is occurring, or whether the emergency-aid exception requires probable cause.

The petition does not address the original public meaning of the Fourth Amendment, or the common law rules on this issue. But this is one area where there are common law authorities on the question, and they seem pretty home-protective.  Given the Supreme Court's increased interest in originalism, I thought I might blog about what the established rule was for this issue at the time of the adoption of the Fourth Amendment, which presumably would inform what would have been understood as an unreasonable search and seizure.

And from the conclusion:

... [C]ombining the Hawkins rule from his Pleas of the Crown with the rule from Hale's Historia Placitorum Coronæ, I take the common law authorities to suggest some significant certainty about whether the "affray" is happening inside the house before the constable can enter.  Hawkins says the constable has to hear or see the big fight.  Hale says it needs to be "likely" that there will be manslaughter or bloodshed, something that to me sounds more suggestive of a probable cause standard.  Hale's mention of noise coning from the house seems consistent with a high certainty, too. The constable would hear the noise himself, being sure of it.

I'd need to look in a lot more detail to be sure of this. But at least on a quick look, it appears that there's significant common law support for the idea that the government needs a significant likelihood of harm occurring before entering the home.

Final Version: An Originalist Defense of the Major Questions DoctrineMichael Ramsey

My article "An Originalist Defense of the Major Questions Doctrine" is now published in the Administrative Law Review (76 Admin. L. Rev. 819 (2024), available from their website here).  Here is the abstract: 

According to the U.S. Supreme Court, the major questions doctrine requires “clear congressional authorization” for agencies to exercise delegated authority over “major policy decisions.” But where can the Court find constitutional authority to announce such a rule? That question divides originalist-oriented scholars and judges. Some have criticized the doctrine sharply as departing from a court’s obligation to apply a law’s textual meaning. Others have defended it as arising from congressional intent, ordinary linguistic conventions, or a constitutionally based rule against delegation of legislative power.

This Article undertakes a broader originalist defense. First, it describes the major questions doctrine as a substantive canon—that is, an interpretive rule based not on linguistic conventions but on an extra-textual value of protecting the separation of powers. Second, it assumes that the major questions doctrine need not be derived from a direct constitutional command against delegation. It then argues instead that the major questions doctrine can be seen as part of a broader power of courts to read ambiguous federal laws narrowly to avoid erroneously undermining core founding-era structural assumptions. The article explores early post-ratification judicial practice in support. It concludes that the early judicial practice indicates a discretionary authority, uncontested at the time, to underenforce ambiguous laws in this manner. It thus links early interpretive canons such as the presumption against violations of international law and the presumption against civil retroactivity, with the modern Court’s longstanding presumptions protecting federalism and the present Court’s recent invocation of the major questions doctrine.

In the same issue of the Administrative Law Review, and something of a counterpoint: Kevin O. Leske (Dayton), Major Questions Hypocrisy (76 Admin. L. Rev. 771 (2024)).  Here is the abstract:

If asked to name some of the core beliefs of the current Supreme Court Justices, one would undoubtedly identify their allegiance to maintaining the separation of powers and to interpretative methods such as textualism, as well as taking an anti-activist approach in their roles as decisionmakers. Yet several of these bedrock principles, especially textualism, have been trumped in several notable recent cases when the Court has invoked the newly-metamorphosized “major questions” doctrine.

The major questions doctrine, as it stands today, requires courts to scrutinize agency action where the agency is attempting to exercise powers of deep economic or political significance or to exercise powers in a way that would effectuate an enormous and transformative expansion of the agency’s regulatory authority. Only if the court finds that Congress clearly authorized such power can the court sustain the action.

But this approach is not the way the doctrine had previously functioned in our administrative state. In my 2016 article on the major questions doctrine, I highlighted a significant expansion in how the doctrine had recently been applied in Supreme Court cases at that time. As originally conceived in two early cases, the Court raised the doctrine as part of its Chevron Step-One analysis to determine whether the statutory language in question was ambiguous. But upon resurrecting the doctrine in 2014 and 2015, the Court invoked the doctrine in other stages of the Chevron analysis, including to justify that the Chevron analysis should not apply at all.

Now, in a series of very recent cases, the doctrine has transformed into a much more significant —and perilous —doctrine with respect to how it functions in both our administrative state and in our democracy. The doctrine can now be better regarded as a canon of construction employed to strike down agency action —even in cases where there is statutory textual support for agency’s assertion of power and where Congress’s underlying grant of power to the agency does not effectuate an unconstitutional delegation of legislative power.

This presumption against agency power (and the requirement that there be a specific congressional grant) effectively diminishes legislative and executive power. Moreover, it represents a dramatic type of judicial activism that fails to respect accountability principles in our democratic system and the separation of powers. With this new doctrine now firmly in place, this Article analyzes how the major questions doctrine is incompatible with the Court’s fidelity to textualism. The Article concludes that the Court’s application of the doctrine also manifests a hypocrisy because although the Court purports to be protecting accountability principles and Congress’s power (and more broadly the separation of powers) when it invokes the doctrine, the Court is actually subverting these principles. 

My article doesn't defend the doctrine on the basis of textualism, but it does defend the doctrine from the perspective of separation of powers.

Todd Zywicki: The Conservative Version of The Rule of LawMichael Ramsey

Todd J. Zywicki (George Mason University - Antonin Scalia Law School) has posted The Conservative Version of The Rule of Law (37 pages) on SSRN.  Here is the abstract:

Establishing the rule of law requires two elements. First, an articulation of the concept that there is a higher law above the government from which the government derives its legitimate authority but which also constrains the exercise of that power. Second, there must be an effective institutional structure for actually enforcing the rule of law's limits on the government in practice.

Three theories have been articulated that can meet these challenges of the rule of law: natural law, social contract theory, and a "conservative" version of the rule of law. This essay focuses on the last. Under the conservative version of the rule of law, both the legitimate authority of the government and constraints upon it are derived from history, tradition, and the particular character of a political community. Rather than the concept of the rule of law emerging as a pre-political concept which is then implemented in practice, under the conservative version of the rule of law, limits are first imposed on the government in practice and only later theorized into principles of constitutionalism. The logic of the conservative version of the rule of law is illustrated through a focus on the ideas of three thinkers: David Hume, Edmund Burke, and Russell Kirk.

Jonathan Gienapp: History, Law, and Constitutional RuptureMichael Ramsey

Jonathan Gienapp (Stanford University - History; Stanford Law School) has posted History, Law, and Constitutional Rupture (B.U. L. Rev., 2024) (32 pages) on SSRN.  Here is the abstract:

The principal problem of U.S. constitutional interpretation centers on the passage of time. As time passes, things change. That is especially true of constitutionalism and law, where older forms must be applied to novel and often unforeseen circumstances, something the American example amply demonstrates. The U.S. Constitution was made a long time ago and must govern a world markedly different from the one for which it was made. What we should do with older constitutional forms (in the case of the U.S., quite old) in a much-changed world poses a challenge that any theory of constitutional interpretation must address. Call this the problem of social drift. The problem of constitutional time runs deeper than just this, however. A more fundamental, and often less perceptible, form of change can sever constitutional present from past. In the first instance, a gap widens between constitutional form and the social world that constitution is meant to regulate and channel; in the second instance, the change takes place within the domain of constitutionalism itself. As time passes, how people think about constitutionalism and its attendant subjects—law, government, power, liberty, rights—can also transform. While many recognize how the interpretation of a constitution might change as society itself changes, it is harder to see how the very idea of a constitution itself can also imperceptibly take on new shape and meaning through the changed habits, assumptions, and legal consciousness of those interpreting it. This less recognized form of change, wrought by the passage of time, defines U.S. constitutionalism every bit as much as the first.

Despite its central importance, the challenge that historical rupture poses for modern constitutional interpretation is still far too neglected. After all these years of arguing over the appropriate use of history in constitutional interpretation, the most important problem raised by the endeavor continues to be downplayed and ignored. That neglect has become especially glaring of late, as the current Supreme Court has placed greater legal weight on our constitutional past than arguably ever before. It is high time to confront the problem of historical rupture in U.S. constitutional interpretation. Anyone who appeals to history in U.S. constitutional argument—most especially originalists, but not just them—must acknowledge and explain what is to be done about the gulf separating us from earlier forms of constitutional thinking. If we are to obey the past, then we need to surmount the chasm separating us from it. We need to recognize that our fundamental law was created by people equipped with a different legal consciousness. We need to do the work of historicizing earlier forms of constitutional thinking that do not map neatly onto our own. Modern originalists can neither ignore nor bracket this fact by insisting, as they often do, that they are engaged in an interpretive activity called “law” that is distinct from “history,” which supposedly frees them from the need to take past differences seriously. In one way or another, the problem of historical rupture touches everyone who wields the constitutional past in our contested present. 

(Via Dan Ernst at Legal History Blog.)

(Note: this essay is in substantial part a review of -- or at least inspired by -- Jack Balkin's new book Memory and Authority: The Uses of History in Constitutional Interpretation (2024))

Originalism and "Actual Malice"Michael Ramsey

At Law & Liberty, a forum on New York Times v. Sullivan, headlined by Carson Holloway (Claremont Institute): The Case Against New York Times v. Sullivan.  From the introduction:

... [A] principled commitment to text, original meaning, and history should lead today’s justices to reconsider the “actual malice” doctrine by which the Supreme Court in the 1960s and 1970s revised the traditional law of libel and the long-established understanding of the First Amendment’s protection for the “freedom of the press.” On the traditional view, libel—or the publication of defamatory falsehoods—was no part of the freedom of the press. It was rather an abuse thought to be outside the scope of that freedom. Accordingly, suits for libel raised no constitutional problems at all, even when the plaintiffs were elected officials or candidates for public office.

In 1964, the modern Court set this tradition aside and substituted a new, two-tier system of libel law, establishing special standards for cases in which public officials (and, later, “public figures”) sued to recover damages for injuries to reputation. Unlike ordinary litigants, the Court announced, public persons, in order to prevail in a libel suit, would have to show not only that they had been victimized by publication of a defamatory falsehood, but also that the publisher had acted with “actual malice”—understood as knowledge of the falsity of the published claim, or at least “reckless disregard” for whether it was true or false. These standards have no basis in the text, original meaning, or history of the Constitution and are a product of judicial activism in the spirit of Roe. The contemporary Court owes it to the nation to reconsider them and return us to traditional principles in this area of constitutional jurisprudence.

Plus these responses:

Angel Eduardo,  What the First Amendment Is For

Glenn Reynolds, Whither Sullivan?

John McGinnis, Originalism and Sullivan

And a reply from Carson Holloway: Originalism, Libel, and the First Amendment.

Cass Sunstein: Historians and OriginalistsMichael Ramsey

Cass R. Sunstein (Harvard Law School; Harvard University - Harvard Kennedy School) has posted Historians and Originalists (10 pages) on SSRN.  Here is the abstract:

Suppose that historians establish that the original public meaning of the First Amendment leads to a much less protective system of free speech than the one to which we have become accustomed, or that the due process clause does not protect much at all. Or suppose, far more dramatically and consistent with the work of Stanford's Jonathan Gienapp, that historians establish that contemporary lawyers and judges have mangled the founding, in the sense that they have fundamentally misunderstood what the founding generation established. What then? Nonoriginalists need not much struggle with that question, but originalists might have to bite some hard bullets. They might have to call for a system of constitutional law that contemporary judges, lawyers, politicians, and citizens would not recognize or might even deplore. Alternatively, they might defend public meaning originalism on the ground that it protects the rule of law and related values, even if it does not really channel the founding, and even if it produces a constitutional order that the founding generation would not recognize and would in fact deplore. But most originalists are unlikely to want to defend their approach on that ground; for better or for worse, they seek to maintain continuity with the founding era. The affective pull of originalism lies in a claim of continuity, even though the strongest arguments on behalf of originalism have exactly nothing to do with that affective pull. In the end, any theory of constitutional interpretation must be justified, not on the ground that it will preserve some kind of continuity with the distant past, but on the ground that it will produce a constitutional order that deserves general support.

New Fed Soc President: Sheldon GilbertMichael Ramsey

According to a Federalist Society press release, Sheldon Gelbert will succeed Eugene Meyer as President of the Federalist Society.  The announcement is here, via Jonathan Adler at Volokh Conspiracy.  Also at Volokh Conspiracy, Steven Calabresi (one of the Society's founders) comments enthusiastically here.  An excerpt:  

... Sheldon is a brilliant libertarian conservative who is 44 years old, has four children, and has held leading positions at the Chamber of Commerce litigation team, the Institute for Justice litigation team, the National Constitution Center headed up by Jeff Rosen, and as a senior counsel at Walmart, which recently decided to end its DEI policy. Sheldon is a member of the Church of Jesus Christ of Latter Day Saints.

Sheldon is highly respected by the rising generation of Federalist Society lawyers in their thirties and forties. He is known for being friendly and kind to everyone, and he has a huge number of friends. Sheldon is an originalist who is committed to the rule of law, to the idea of the separation of powers, and to the principle that it is emphatically the province and duty of the judiciary to say what the law is and not what it should be.