08/12/2022

How Many Law Professors Are Originalists?
Mike Rappaport

While the Supreme Court appears to have four originalists (Barrett, Gorsuch, Kavanaugh & Thomas) along with two fellow travelers (Alito & Roberts), how many originalists are there in the legal academy?  Most people have the impression that relatively few professors are originalists, and a new survey of law professors suggests that impression is correct. 

In a survey of law professors from the top 20 and top 50 schools, one of the questions was “What theory should judges apply when interpreting the U.S. Constitution?”  For professors from the top 20 schools: Living Constitutionalism was strongly accepted as an appropriate theory, where “strongly accepted” meant that more than 2/3 of the professors who answered accepted it.  Common law constitutionalism was also strongly accepted.  Pluralism was merely “accepted,” which meant that more than half of the professors who answered accepted it.

What were the results for originlism?  Originalism was strongly rejected, meaning that more than 2/3 of the professors rejected it as an appropriate theory.  Thus, living constitutionalism was strongly accepted; originalism was strongly rejected.  No surprise there.

Similar results applied for professors from the top 50 schools.

How many professors indicated that originalism was an appropriate theory for interpreting the Constitution?  Based on professors from the top 50 schools plus some other law professors, the results indicate that only 18.6 % of law professors believe originalism is an appropriate theory of constitutional interpretation.

Obviously, these results indicate that the law professoriate holds very different views than the current Supreme Court.  So it should not be surprising that law professors will strongly criticize the Court.

Another question is how well the current crop of law professors can teach students about the originalist view often voiced by the Supreme Court.  Of course, one does not have to agree with a view to teach it.  But to teach it well, professors should be able to voice the originalist view as an originalist would voice it.  Put differently, they should be able to do a good job of passing an ideological Turing test for an originalist.

It is a challenging task to teach a view one disagrees with.  Here’s hoping that we -- both originalists and nonoriginalists -- are up to the task.   

William Baude on the Supreme Court's Use of History
Michel Ramsey

In the Washington Post, William Baude: Of course the Supreme Court needs to use history. The question is how.  From the introduction:

The Supreme Court’s seismic term was notable not only for the decisions it reached but also how it reached them: making extensive use of history. This might seem like a bad development — turning back the clock on societal progress and calling for judges to do hackish, “law-office history.” But it is not. The question going forward is not whether the court should use history but how.

The court finds itself using history for both legal and practical reasons. History is inextricably connected to law. Our Constitution and statutes were enacted in the past, and amended in the past, and so understanding their content is an inherently historical endeavor. History, practiced properly, also can supply objectivity, giving the justices a basis for deciding beyond their personal views and the controversies of the day.

These uses of history, ironically, provide support for powerful legal change. If the court is to overturn nearly 50 years of precedent, as it did in Dobbs v. Jackson Women’s Health Organization, it points to something even older and more deeply rooted than Roe v. Wade itself — the history and tradition surrounding the Constitution. So, too, if the court is to second-guess the gun-control legislation of modern jurisdictions, as it did in New York State Rifle & Pistol Association v. Bruen, it does so by pointing to the Constitution’s text and history.

The use of constitutional history has been challenged as inherently regressive. Why should today’s public policy decisions owe anything to past eras when women or people of color were excluded from power? This argument misses the point. In cases like Dobbs, the court seeks to free government from constitutional constraint, arguing that today’s governing majorities are entitled to make their own choices about abortion policy, no matter what dead White men in wigs may have thought. In cases like Bruen, the court relies on historical arguments that the right to keep and bear arms was especially vital to newly freed African Americans in the wake of the Civil War. And in other cases, the court has used history to vindicate the rights of criminal defendants and other unpopular groups.

And in conclusion: 

This brings us to the broader lesson. In recent years, many critics of the court — including some dissenting justices — have ceded the initiative. They have tried to shield themselves behind precedents or to poke holes in the majority’s arguments without advancing a competing constitutional theory.

That is true even of recent dissents that engaged superficially on historical grounds. That will not be enough. The court’s increasing reliance on history creates an opportunity for those critics to provide their own rigorous account of our law and constitutional tradition. To seize that opportunity, they will have to make the best use of history, not try to escape it.

08/11/2022

An Originalist Defense of the Major Questions Doctrine
Michael Ramsey

I was initially skeptical of the major questions doctrine (MQD), as deployed by the Supreme Court in West Virginia v. EPA – basically for the reasons expressed by Chad Squitieri, Tom Merrill and Jonathan Adler.  But with everyone ganging up on the MQD, my contrarian instinct pushes me the other way.  So here is a tentative defense.

First, I assume that the Constitution’s original meaning contains some reasonably strong version of the nondelegation doctrine, that is, that Congress cannot delegate important legislative matters to the President (or administrative agencies) as a result of Article I, Section 1’s vesting of “all legislative Powers” in Congress.  (For a quick overview of the argument, see here from Devin Watkins).  I’m not sure that’s right, but it needs to be right for the argument to work.

Second, I assume that the line between permissible and impermissible delegations is so difficult to define and apply that, except in extreme cases, the nondelegation rule is basically nonjusticiable, as held by the Supreme Court (per Justice Scalia) in the Whitman case.  Again, I’m not sure that’s right, but I’m assuming it for purposes of the argument.

Third, I assume that Congress will often enact broad statutes in which the extent of the intended delegation is uncertain.  (I’m pretty confident that’s true).

Now for the argument:

The Court has a common and longstanding practice of developing clear statement rules (whether actually called by that name or not), by which the Court avoids an expansive reading of a statute unless Congress is clear in directing the expansive reading.  For example, a clear statement is needed before a statute is read to interfere with a state’s internal governance (Gregory v. Ashcroft), to apply to purely local activity (Bond v. US), to apply extraterritorially (Morrison v. National Australia Bank), or to impose criminal penalties (the rule of lenity).

Probably the earliest version in US federal law is the “Charming Betsy” rule, requiring a clear statement before a statute is read to violate international law.  (The rule takes its name from Chief Justice Marshall’s decision in Murray v. The Charming Betsy (1804), but Marshall applied a version of it even earlier, in Talbott v. Seeman in 1801).  Specifically Marshall wrote in Charming Betsy: “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.”

I’m not sure that’s good enough for a strict textualist, but as an originalist matter that’s a pretty strong practice.  (Also, for what it’s worth, Justice Scalia endorsed most or all of the modern clear statement rules).

In my view, these rules aren’t really about finding the true meaning of the statutory text.  I doubt, for example, we can assume that, absent a clear statement, Congress doesn’t want to violate international law, interfere with states’ internal governance or create criminal penalties.  Rather, these are rules of judicial restraint, avoiding a broad reading of a statute where the meaning is uncertain and there are severe costs to the court erroneously reading the statute broadly.  So the basis of the Charming Betsy rule is best understood as the negative effects for U.S. foreign relations of international law violations; better for the Court to err on the side of not reading a statute to violate international law (an error Congress can correct) than to err on the side of wrongly endorsing a violation of international law.

Thus, the fact that the MQD applies a clear statement rule instead of applying close textual analysis isn’t novel or contrary to originalism.  To be consistent with historical practice, though, this particular clear statement rule needs to protect against some substantial negative effect of overreading a statute.  For the MQD, I think that argument can be made, if one accepts the assumptions posited at the outset of this post.  Nondelegation is an important constitutional value, assuring that the people’s representatives in Congress make legislative decisions through a deliberative and accountable process.  But since the Court can’t enforce nondelegation directly and delegating statutes are often ambiguous as to their scope, there’s a substantial risk courts will err in reading statutes too broadly, allowing too much delegation to the President or the agencies.  (By “too much delegation” I mean more than is appropriate in a system that values deliberative decisions by the people’s representatives as to important legislative matters.)  As a result, there’s good reason to have a clear statement rule to protect against judicial error, the same way Marshall protected against erroneous interpretations that violate international law in the Charming Betsy case.

08/10/2022

John Witte: What’s Clear and Not So Clear About the Original Intent of the First Amendment
Michael Ramsey

John Witte Jr. (Emory University School of Law) has posed Back to the Sources? What’s Clear and Not So Clear About the Original Intent of the First Amendment (47 BYU L. Rev. 1303 (2022)) (82 pages) on SSRN.  Here is the abstract:

This Article peels through the layers of America's founding documents before exploring the final sixteen words of the First Amendment religion clauses. Part I explores the founding generation’s main teachings on religious freedom, identifying the major principles that they held in common. Part II sets out a few representative state constitutional provisions on religious freedom created from 1776 to 1784. Part III reviews briefly the actions by the Continental Congress on religion and religious freedom issued between 1774 and 1789. Part IV touches on the deprecated place of religious freedom in the drafting of the 1787 United States Constitution. Part V reviews the state ratification debates about the 1787 Constitution and introduces the religious freedom amendments that they proposed to the First Congress tasked with drafting new federal rights language. Part VI combs through all the surviving records of the First Congress’ drafts and debates on what became the First Amendment. Part VII parses the final sixteen words of the religion clauses and sifts through what’s clear and not so clear about the final words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” The Conclusion distills my main findings about the original understanding of the First Amendment and their implications for originalists today.

Is Dobbs an Instance of Originalism?  Yes and No.
David Weisberg

In the Dobbs majority opinion, the analysis of “liberty” in the Due Process Clause of the 14th Amendment does not even purport to examine the original public meaning of that word in the context of the phrase, “[N]or shall any State deprive any person of … liberty … without due process of law.”  But even if one accepts the methodology of Justice Scalia’s original-public-meaning originalism, the original public meaning of “liberty” in 1868 is irrelevant to the issue in Dobbs.  This conclusion follows from the fact that, as understood by the Dobbs majority (and without opining as to the correctness of that understanding), the entire phrase from the Due Process Clause is a term of art.  That is, the phrase has a special meaning in the law that inevitably diverges from whatever might be its original public meaning. 

The Dobbs majority treats the phrase as a legal term of art when it holds that, within the Due Process Clause, the term “liberty” must refer either to one of the enumerated rights in the Bill of Rights, or to a right that is “deeply rooted in this Nation’s history and tradition.”  (Dobbs majority slip op, 36, internal quotation marks omitted.)  Obviously, in 1868, the original public meaning of the word “liberty” would not have been so restricted.  But all original-public-meaning originalists accept, I believe, that original public meaning is not decisive when words appear in a phrase that is a term of art.  Because Dobbs does not examine the original public meaning of “liberty” in the context of the Due Process Clause or in any other context, we have the “no” part of the answer.

The “yes” part derives from the fact that, in Justice Scalia’s view, perhaps the most important, fundamental virtue of original-public-meaning originalism is that it tends to prevent judges, and especially Justices of the U.S. Supreme Court, from transforming their personal policy preferences into constitutional law.  The great danger Scalia identified in “the Living Constitution” is that the Court effectively amends the Constitution to reflect what a minimum of five Justices believe to be the best result, regardless of whether that result is consistent with the original public meaning of the relevant provision, and also regardless of whether that result negates laws enacted by democratically-elected legislators.  The methodology of the Living Constitution, in Scalia’s view, is inconsistent with both the Article V provisions for amending the Constitution, and with the respect the judicial branch should accord to laws enacted by democratically-elected legislators in the States and the Congress. 

We know, of course, that Scalia viewed both Roe and Casey as improper exercises of raw judicial power—cases in which Court majorities transformed personal policy preferences into constitutional law and, in so doing, negated the democratically-enacted statutes of dozens of States.  From an originalist perspective, then, Dobbs is a case which overrules the personal policy preferences of the Roe and Casey majorities and properly returns the regulation of abortion to the States, where it resided for almost two hundred years before Roe.  In that sense, and specifically because it gives effect to what originalists deem to be the fundamental virtue of originalism, Dobbs is an instance of originalism.    

08/09/2022

The FBI Raid on Ex-President Trump
Andrew Hyman

The FBI raided the private home of a former president yesterday, for the first time in history. As Josh Blackman says over at the Volokh Conspiracy blog, “the optics here are stark: the chief law enforcement officer of the Biden administration is searching the home of the front-runner for the 2024 republican ticket.”  CNN reports
 
The FBI executed a search warrant Monday at Donald Trump's Mar-a-Lago resort in Palm Beach, Florida, as part of an investigation into the handling of presidential documents, including classified documents, that may have been brought there, three people familiar with the situation told CNN.
 
That’s the ostensible rationale, but how does it match up with the law and its original meaning?  There are apparently two sets of issues here: (1) the classification system for preserving state secrets, and (2) preservation of presidential records.  The latter seems more problematic for Trump than the former, because the classification system (including declassification) is run by executive order within the executive branch, whereas there is a federal statute about preserving presidential records. 
 
In my view, Trump could have informally or implicitly declassified anything he wanted while he was still president, even on his last day in office as he (voluntarily) walked out the door, and he could have limited that declassification to his own personal use of that information rather than anyone else’s use of it.  That’s how the system worked, and what the law was, for better or worse.  Law professor Steve Vladeck wrote in 2017 that Congress “has largely abdicated any authority or responsibility for national security classification.”  Vladeck was right, and there is no reason why Trump, while in office, had to follow Presidential Executive Order 13526, which had been issued by President Obama in 2009. On the other hand, Vladeck mentioned that the Federal Conversion Act does not turn on whether the information is classified or not.  But then we are moving to the subject of presidential documents rather than the classification system, because there is a specific statute addressing that subject: the Presidential Records Act (PRA), which was passed in 1978 and took effect in 1981, available at 44 U.S.C. §§ 2201–2209
 
According to the Congressional Research Service, “For most of the nation's history, presidential records were considered the private property of the President.” The PRA says (at 44 U.S. Code § 2202), “The United States shall reserve and retain complete ownership, possession, and control of Presidential records; and such records shall be administered in accordance with the provisions of this chapter.”  That was a big change.  Interestingly, at the same time, Congress preserved private ownership of their own papers
 
Executive privilege also plays into all of this, arising under the separation of powers, and there was a lot of discussion about that in the recent 10th Circuit case of Trump v. Thompson.  Certainly, presidents before 1981 had more privilege over presidential documents as compared to later presidents who do not have any recognized property right in their own papers.  In that way, executive privilege was considerably whittled away in 1978 by the PRA.  If there is anything unconstitutional about that termination of property rights mandated by the PRA, it may be because Congress could have maintained a balance of power between the branches by subjecting its own papers to public ownership too, and not diminishing the internal management power of the executive branch only. 
 
Josh Blackman also mentioned an interesting statute, 18 U.S. Code § 2071 which says at part “b” that an official who destroys official documents “shall forfeit his office and be disqualified from holding any office under the United States.”  Since Trump is now out of office, he cannot forfeit his office so this quoted material is not applicable to him, it would seem.  Part “a” of that statute applies to people who are not officers, and it imposes no disqualification.  There’s no need to get into the issue of whether the president is an “officer under the United States” (I believe he is). Professor Matthew Franck wrote a good essay about this in 2015, titled No, a Statute Can't Keep Hillary from Being President.  At least, this statute can't.
 
MICHAEL RAMSEY ADDS:  On the last point, there are at least three separate issues: (1) whether Section 2071(b) applies to Trump as a former official; (2) whether Section 2071(b) applies to the presidency, or only to offices created by Congress; and (3) if it does apply to the presidency, whether it's constitutional.
 
On issue (2), Franck says it shouldn't be read to apply to the presidency, because a statute can't force the President to "forfeit his office" other than by impeachment and conviction.  That seems true, but also true of other officers of the United States (per Bowsher v. Synar, Congress cannot remove executive branch officials by statute).  So I'm not sure if the forfeiture part of the statute isn't just generally unconstitutional (although forfeiture-of-office statutes do have a history back to the founding era).
 
On issue (3), Franck says the disqualification part of the statute can't constitutionally apply to the President because the Constitution's presidential qualifications clause is exclusive: 
 
But a mere statute cannot legally disqualify a person from eligibility to the presidency, if he or she possesses the constitutional qualifications.  Anyone who is a native-born citizen, 35 or older, who has been 14 years a resident of the country, and who receives a majority of the electoral votes cast for president as certified by the joint session of Congress held to count the ballots (or in the event of no such majority, the one who wins a majority of the states in the contingency balloting of the House), shall be sworn in as president.  That is all in the Constitution, and it is not possible for Congress to add the further qualification “and who has not been convicted of felony X.”
 
As Josh Blackman notes, Seth Barrett Tillman reached a similar conclusion, also in the context of Hillary Clinton's candidacy: Secretary Clinton Can Relax Because Section 2071 Disqualification Does Not Apply to the Presidency.

Victoria Nourse: The Promise and Paradox of a Unified Judicial Philosophy
Michael Ramsey

Victoria Nourse (Georgetown University Law Center) has posted The Promise and Paradox of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020-2022 (51 pages) on SSRN.  Here is the abstract:

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile in the courts’ opinions. History appears in at least one opinion in a majority of cases and in a significant minority of unanimous cases, text is the end of the matter. However, there is also cause for worry. We found significant evidence of what Prof. Adrian Vermeule (2022) has called “disruption,” meaning that history and text are used to disrupt prior doctrines despite claims that originalism seeks stability and neutrality. Call this the “disruption” paradox. Similarly, we found that the self-described textualist Justices—presumably the best textualists in the world—do not agree upon the text most of the time. And when they disagree about text, they end up doing what they say that they should not do, engaging in policy reasoning. Call this the “consequentialist paradox.” The paper argues that proponents and critics of the court's new interpretive philosophy should seek to resolve these quandaries. [An 80 page appendix supporting these claims is posted separately]

This is a draft, do not cite without permission of the author.

08/08/2022

Evan Bernick: Fourteenth Amendment Confrontation
Michael Ramsey

Evan D. Bernick (Northern Illinois University - College of Law) has posted Fourteenth Amendment Confrontation (65 pages) on SSRN.  Here is the abstract:

Crawford v. Washington was initially hailed as a triumph—a much-needed reinvigoration of the Sixth Amendment right of criminal defendants “to be confronted with the witnesses against [them].” It has few supporters today, and criticisms of it have taken on heightened importance in the wake of constitutional decisions involving the “incorporation” of the Bill of Rights against the states. In NYSRPA v. Bruen the Supreme Court flagged an “ongoing scholarly debate” about whether incorporated rights should be applied as they were understood in 1791—when the Bill of Rights was ratified—or in 1868—when the Fourteenth Amendment incorporated them. Bruen thus broadened the scope of historical inquiry into a diminished precedent.

This is the first Asrticle to explore the meaning of the right to confront witnesses during the antebellum struggle against slavery. It demonstrates that confrontation rights would emerge broader and stronger from an inquiry into their meaning in 1868. Crawford held that only “testimonial” out-of-court statements that were intended to aid the prosecution were originally understood to require an opportunity for face-to-face cross-examination of a witness. But this was not true in 1791, much less in 1868. By the time the Fourteenth Amendment was ratified, the general rule was that no out-of-court statements could be used by the prosecution to prove a defendant’s guilt absent an opportunity for prior cross-examination; and there was only one, narrow exception for dying declarations by homicide victims. Confrontation’s evolution is evinced, not only in commentaries and judicial decisions but in public arguments raised by abolitionists against the Fugitive Slave Act of 1850.

Recovering this history is essential, not only to capturing confrontation’s original meaning but to realizing confrontation’s original goals today. These goals are not limited to the discovery of truth. They include protection of the dignity and liberty of even the unquestionably guilty; the provision of a fair chance to all defendants to resist punishment; and democratic contestation of the content and enforcement of criminal law. Most fundamentally, confrontation is about shifting power. Recovering this understanding would enable those most directly impacted by the U.S. criminal punishment system to resist and transform it.

08/07/2022

Giancarlo Canaparo & Thomas Jipping on William Treanor on Originalism and Precedent
Michael Ramsey

At Law & Liberty, Giancarlo Canaparo & Thomas Jipping (Heritage Foundation): Getting Originalism Wrong (critiquing this essay by William Treanor).  From the introduction:

William Treanor ... has an op-ed in Slate in which he claims that the Framers “believed that courts should defer to precedent” rather than the Constitution’s original public meaning. On this basis he criticizes the conservative justices as “flawed” originalists because they have the opposite priorities, willing to overrule precedents that depart from the Constitution’s original public meaning.

This theory allows him to complain about the Supreme Court overruling Roe v. Wade in Dobbs v. Jackson Women’s Health Organization and Lemon v. Kurtzman in Kennedy v. Bremerton School District on some basis other than the one which likely truly motivates him, which is that he likes the overruled precedents better than the overruling ones.

But Treanor’s position raises many questions, the first of which is: does he believe that precedent should never be overruled? If so, we would be stuck with cases like Plessy v. Ferguson (upholding separate but equal), Korematsu v. United States (upholding the internment of people of Japanese ancestry during WWII), or Pace v. Alabama (upholding anti-miscegenation laws)—all of which were precedents for longer than Roe.

Well, no. Treanor hedges and, pointing to Plessy specifically, says that “certainly some precedents of the court should be overturned.” Which brings us to the next obvious question: what rule does the dean propose to distinguish cases, like Plessy, that should be overruled from cases, like Roe, that should not?

This is, after all, the most important question. It’s surprising, therefore, that Dean Treanor has nothing to offer. No rule, no principle, no criteria, nothing. All he knows for sure is that a “decision to overturn precedent cannot be based on a jurisprudence of original meaning.”

Precedent is a challenge for any theory of constitutional interpretation, but I think this critique misunderstands Dean Treanor's claim.  His point is that if the framers believed precedent should never be overruled (or, I would say for an original meaning approach, if the original meaning of the judicial power is that courts lack power to overrule precedent), then originalist judges, uniquely, should not overrule precedent.

I think he's right, if his premise is right.  But I don't think his premise is right.  I don't think he's shown that founding-era courts lacked power to overrule precedents.  He has some generalized quotes from Madison and Hamilton that seem to me somewhat short of definite statements. My impression is that courts of the period actually did overrule precedents.  And in any event, as applied to Dobbs and other recent cases, the question for originalists is what to do about nonoriginalist precedent -- that is, precedent that (from an originalist perspective) itself exceeded the bounds of the judicial role.  Statements from the founders about the general value of precedent don't address that question. 

 

08/06/2022

Erik Encarnacion: Text is Not Law
Michael Ramsey

Erik Encarnacion (University of Texas School of Law) has posted Text is Not Law (Iowa Law Review, Vol. 107, No. 5, 2022) (53 pages) on SSRN. Here is the abstract:

The Supreme Court’s landmark decision in Bostock v. Clayton County provides further fodder for debates about textualism, given the dueling opinions of Justices Gorsuch, Alito, and Kavanaugh, each of which purports to apply textualist reasoning correctly. But in a little-remarked-upon passage, Justice Gorsuch’s opinion casually conflates text and law, asserting, “[o]nly the words on the page constitute the law adopted by Congress and approved by the President.” In equating statutory text with law, Justice Gorsuch isn’t alone, following in the footsteps of other prominent textualists, including the late Justice Antonin Scalia and Judge Frank Easterbrook.

But text is not law—and cannot be. Conflating statutory text and law makes a category mistake. And not a harmless one. Nor is the conflation easily dismissed as an example of incautious rhetoric. The conflation fosters confusion about textualism and further muddles public understanding of appellate adjudication by propping up the myth that appellate judges should—and can—avoid making law. Conflating text and law also facilitates a type of literalist interpretation--indeed, opportunistic literalism--that defenders of textualism purport to reject.

Despite these problems, the casual conflation of text and law is likely here to stay, at least in part because it provides rhetorical advantages to textualist judges by allowing them to sidestep thorny controversies about linguistic meaning and the nature of law. This advantage suggests that textualist judges will continue to claim, falsely, that text is law.

Via Larry Solum at Legal Theory Blog, who has extensive critical comments, concluding: 

Originalism is the view that constitutional construction ought to be constrained by the communicative content of the constitutional text.  Statutory textualism is the view that statutory construction ought to be constrained by the communicative content of statutory texts.  Formulated in this way, neither originalism nor textualism rests on the claim that "text is law," and neither theory commits a category mistake.  This has all been clear since the early 2010s--although some originalists and textualists may be unaware of these issues or fail to appreciate their conceptual importance.

Read Encarnacion but take his article with a grain of salt when it comes to its claims about textualism and originalism.

Agreed. I don't think anyone actually thinks that text standing alone (meaning just the marks on the page) is or ought to be the law.

08/05/2022

New Book: "America's Philosopher" by Claire Rydell Arcenas
Michael Ramsey

Recently published: America's Philosopher: John Locke in American Intellectual Life (U. Chicago Press 2022) by Claire Rydell Arcenas (University of Montana - History).  Here is the book description from Amazon: 

America’s Philosopher examines how John Locke has been interpreted, reinterpreted, and misinterpreted over three centuries of American history.
 
The influence of polymath philosopher John Locke (1632–1704) can still be found in a dizzying range of fields, as his writings touch on issues of identity, republicanism, and the nature of knowledge itself. Claire Rydell Arcenas’s new book tells the story of Americans’ longstanding yet ever-mutable obsession with this English thinker’s ideas, a saga whose most recent manifestations have found the so-called Father of Liberalism held up as a right-wing icon.

The first book to detail Locke’s trans-Atlantic influence from the eighteenth century until today, America’s Philosopher shows how and why interpretations of his ideas have captivated Americans in ways few other philosophers—from any nation—ever have. As Arcenas makes clear, each generation has essentially remade Locke in its own image, taking inspiration and transmuting his ideas to suit the needs of the particular historical moment. Drawing from a host of vernacular sources to illuminate Locke’s often contradictory impact on American daily and intellectual life from before the Revolutionary War to the present, Arcenas delivers a pathbreaking work in the history of ideas.

08/04/2022

Jonathan Adler: Some Answers about Major Questions
Michael Ramsey

Jonathan H. Adler (Case Western Reserve University School of Law) has posted West Virginia v. EPA: Some Answers about Major Questions (Cato Supreme Court Review, forthcoming) (39 pages) on SSRN.  Here is the abstract:

In West Virginia v. Environmental Protection Agency (WV v. EPA) the Supreme Court rejected an expansive reading of Section 7411 of the Clean Air Act. Expressly invoking the 'major questions doctrine' for the first time in a majority opinion, the Court concluded Section 7411 of does not allow the EPA to require generation shifting to reduce greenhouse emissions. This decision rested on the longstanding and fundamental constitutional principle that agencies only have that regulatory authority Congress delegated to them. The Court further bolstered the argument that delegations of broad regulatory authority should not be lightly presumed, but also left substantial questions about the major questions doctrine unanswered. By skimping on statutory analysis and front-loading consideration of whether a case presents a major question, the also Court failed to provide much guidance for lower courts. While WV v. EPA represents a missed opportunity to clarify and ground the major questions doctrine, it remains a tremendously important decision, and will be cited routinely in legal challenges to new regulatory initiatives. While limiting the scope of Section 7411, the decision did not curtail the EPA’s traditional air pollution control authorities, nor does it preclude the EPA from using such authorities to regulate GHGs. It does, however, make it more challenging for the EPA or other agencies to develop new climate change policies relying upon preexisting statutory authority directed at other problems.

Via Volokh Conspiracy, where Professor Adler adds:

I also recommend Tom Merrill's series of posts about the case. I do not agree with him in every particular, but his posts are quite worthwhile, and we seem to reach the same general bottom line. As he argues in his final post, the real question in cases like WV v. EPA is whether Congress actually delegated the power asserted by the agency, and that is a question courts must answer--and should answer without taking the sort of major-question-shortcut the Court took in WV v. EPA. 

08/03/2022

More from Tom Merrill on West Virginia v. EPA
Michael Ramsey

Here are the final two posts from Tom Merrill's guest blogging at Volokh Conspiracy (see here on the earlier posts).

West Virginia v. EPA: Questions About "Major Questions"

West Virginia v. EPA: Getting to Actual Delegation

From the introduction to the last post:

Both the Chevron doctrine and West Virginia v. EPA are based on ideas about the delegation of interpretive authority from Congress to administrative agencies. Chevron introduced the idea of "implicit" delegations, and the doctrine spawned by it eventually held that any ambiguity in an agency statute is an implicit delegation. West Virginia is effectively an unacknowledged carveout. Without the majority's mentioning Chevron, the case posits that when a "major question" is involved, a delegation must take the form of a clear statement; presumably, only express delegations or something close to this will count.

Both positions are extreme. The idea that any ambiguity is a delegation transfers too much power to the administrative state. The view that only express delegations will do for major questions concentrates too much power in reviewing courts.

The better position, as suggested in my recent book, The Chevron Doctrine: Its Rise and Fall, and the Future of the Administrative State (Harvard University Press 2022), is that courts should condition any strong form of deference to agency interpretations on a finding that Congress has actually delegated authority to the agency to resolve the issue. This means more than finding ambiguity; courts must carefully interpret the statute and conclude that Congress left a gap for the agency to fill.

08/02/2022

Julia Mahoney: Cedar Point Nursery and the End of the New Deal Settlement
Michael Ramsey

Julia D. Mahoney (University of Virginia School of Law) has posted Cedar Point Nursery and the End of the New Deal Settlement (11 Brigham-Kanner Property Rights Journal (2022)) (35 pages) on SSRN.  Here is the abstract:

In Cedar Point Nursery v. Hassid, the United States Supreme Court ruled that a California state regulation granting labor organizations a limited “right to take access” to agricultural employers’ property constitutes a per se physical taking. Cedar Point has sparked intense criticism, with critics arguing that the decision threatens to transform the law of property rights so as to “hobble” government land use regulation and even undermine democracy. This Article explains why the objections of Cedar Point’s detractors are misplaced. Far from disabling government regulation or fomenting stasis by favoring the “already haves,” Cedar Point is best understood as another step in the normalization of property rights. In this, Cedar Point is in accord with other recent Court decisions, including Horne v. Department of Agriculture, and Knick v Township of Scott. These cases illustrate how constitutional recognition of property interests, duly enforced by the judiciary, protect the interests of the working and middle classes. That is no small thing, particularly at a time of well-justified concerns about the outsize influence of elites on the legislative and executive branches of government, with its attendant worries that those who lack power to defend themselves in the political and administrative arenas are vulnerable to “redistribution up.”

It is true that this normalization of property rights amounts to a retreat from the “New Deal Settlement,” under which courts declined to subject legislative and administrative actions affecting property rights to significant oversight. But for anyone who cares about the economically vulnerable, the passing of the New Deal Settlement should be cause for celebration rather than alarm. Eighty years on, it is evident that the costs to many poor communities of judicial abdication in the area of property rights were very high. The careful readjustment now underway does nothing more than recognize property’s status as a civil and human right, one that needs serious constitutional protection if people are to flourish as citizens, family members, and workers.

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

08/01/2022

Justice Kagan's Dissent in West Virginia v. EPA
Mike Rappaport

I have some serious reservations about both the majority and the concurrence in West Virginia v. EPA.  The major questions doctrine appears to be neither statutory nor constitutional originalism.  But more on that in the future.  Here I want to note two problems with Justice Kagan’s dissent. 

The first problem is Justice Kagan’s discussion of the nondelegation doctrine.  She writes:

The kind of agency delegations at issue here go all the way back to this Nation’s founding. “[T]he founding era,” scholars have shown, “wasn’t concerned about delegation.” . . . The records of the Constitutional Convention, the ratification debates, the Federalist—none of them suggests any significant limit on Congress’s capacity to delegate policymaking authority to the Executive Branch. And neither does any early practice.

Kagan largely relies on Mortenson & Bagley’s Delegation at the Founding.  And their article does present some significant evidence of delegation.  But Kagan’s overstates the case.  Ilan Wurman’s article, Nondelegation at the Founding, also shows that there were substantial concerns about delegation at the founding.  It seems odd that Kagen simply ignores Wurman’s evidence. 

Put differently, it is one thing to claim that the evidence in favor of delegation outweighs the evidence against it.  It is another to claim there is no evidence against delegation.  Depending on what version of the nondegation doctrine one accepts – a two tier approach or a single tier approach, a categorical approach or an "important subjects" approach – the evidence may point more towards one or other position.  But it is clear there is evidence on both sides.

The second problem involves Kagan’s discussion of the reasons why Congress delegates.  She writes that “Members of Congress often don’t know enough— and know they don’t know enough—to regulate sensibly on an issue.”  And “Second and relatedly, Members of Congress often can’t know enough—and again, know they can’t—to keep regulatory schemes working across time.”  These sound like legitimate reasons for Congress to delegate.  Perhaps they justify delegation from a policy perspective, although I do not think so because the REINS Act would allow Congress to rely on agency expertise. 

But Kagan makes it sound as if these are the primary reasons why Congress delegates.  But there is another reason why it does so: delegation allows the members of Congress to avoid responsibility for regulations.  If the regulation is popular, the member takes credit for it.  If the regulation is unpopular, the member says he or she had no idea the agency would behave so irresponsibly.  While astute political observers should be able to see through this, most voters do not. 

If Kagan were to have acknowledged this was part of the reason Congress likes delegation, it would have made her argument much weaker.  But is she really prepared to deny this obvious aspect of delegation?

07/31/2022

Jack Beermann on Kurt Eggert on Nondelegation and Originalism
Michael Ramsey

At Jotwell, Jack Beermann: Nondelegation and Originalism (discussing [favorably] Kurt Eggert, Originalism Isn’t What it Used to Be: The Nondelegation Doctrine, Originalism, and Government by Judiciary, 24 Chap. L. Rev. 707 (2021)).

Originalism certainly isn’t what it used to be. From a fringe theory with few adherents it has, in recent decades, become the dominant conservative legal weapon deployed against nearly every liberal legal development since the dawn of the twentieth century, particularly the acceptance of the administrative state and the delegation of rulemaking power to agencies. Professor Kurt Eggert’s recent article adds to the mounting evidence that originalism is not a credible legal theory especially when deployed against Congress’s choices concerning the proper structure of the regulatory state.

Eggert’s opening salvo takes aim at the claim that the Framers of the Constitution adopted a theory of government embodied in John Locke’s Second Treatise of Government of 1689, which includes what originalists characterize as a sweeping rejection of legislators’ delegating lawmaking power. This is the basis of Professor Ilan Wurman’s argument in Nondelegation at the Founding, and, as Eggert points out, Justices Gorsuch, Rehnquist and Thomas have all cited Locke as a source for their argument that the Constitution incorporates a strict nondelegation doctrine. Adding to the chorus of scholars who reject the conclusion that the Framers embodied a nondelegation principle based on Locke’s Second Treatise, Eggert demonstrates convincingly that Locke’s influence had largely disappeared before the Constitutional Convention of 1787 and that his only real influence was in favor of rebellion in the 1770s, not on the structure of the new government created in the 1780s. In fact, only Anti-Federalists opposed to the Constitution relied heavily on Locke and then only to cite his natural rights theories as a reason to reject a powerful central government.

Among the most convincing discussions in Eggert’s fine article involves actual debates over nondelegation among the Framers, including James Madison’s contributions on the subject. Here he wisely cites Professor Nicholas Parrillo’s recent article on the subject, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, and an older article by Professors Eric Posner and Adrian Vermeule, Interring the Nondelegation Doctrine. Both conclude, after exhaustive study, that delegation was not a significant issue at the convention. Eggert also relies on another important set of occurrences at the convention, that James Madison twice suggested including a ban on delegation in the Constitution. Both attempts were, of course, rejected, which to many legal minds indicates that the convention disagreed with Madison. While rejection of a proposed amendment does not always indicate agreement on a contrary view, it borders on the bizarre to offer Madison’s rebuffed amendments as evidence that the convention agreed with his proposals, as some have done. Eggert convinced me that there is nowhere near enough evidence to support the view that the Framers silently but implicitly included a strong nondelegation principle in the Constitution.

I would say, contra Professor Beermann, that if true none of this would show that "originalism is not a credible legal theory" -- it it would just show that originalism doesn't support a strong nondelegation doctrine, and indeed can be a credible tool to refute such a doctrine.

From later on:

Some readers may find this whole discussion disconcerting, for it appears that Eggert is, at least in part, deploying originalist arguments to reject originalism. [Ed: No, per the above comment, he's deploying originalist arguments to reject the nondelegation doctrine.] Eggert agrees that he is no better equipped to discern whether the historical record supports a nondelegation doctrine than the lawyers and judges who disagree with his conclusions on the matter. But, as he points out more than once, the proponents of a strong nondelegation principle are urging courts to reject Congress’s determinations concerning the optimal distribution of regulatory authority. Without clear text and unequivocal historical support, the Supreme Court should leave the decision over agency power to Congress and not arrogate to itself the powers of a Council of Revision, which Eggert notes was also unsuccessfully proposed by James Madison. Opponents of judicial activism under vague provisions like the due process clauses do not hesitate to point out problems with judges imposing their will on the political branches, and the exact same critique applies to their advocacy of a strict nondelegation doctrine.

I think this argument highlights an important issue for originalism that hasn't been fully explored (by originalists, especially judicial originalists).  What's the right originalist result when the originalist sources are mixed (as they perhaps are on the nondelegation issue)?  Should originalist judges make the best assessment they can, even if the call is very close, or should they defer to the political branches unless the originalist outcome is reasonably certain?

07/30/2022

Bad History at the Supreme Court?
Michael Ramsey

Many law professors and other authorities have claimed in popular commentary that the Supreme Court majorities in the June opinions used flawed, even dishonest, history.  I haven't seen much yet that proves the claim.

For example, there's this piece by Steven Lubet (Northwestern) at The Hill: The Supreme Court’s selective history.  He concludes:

What should be obvious is that Alito [in the Dobbs case], with his clerks’ assistance, plucked his sources from partisan briefs, selectively plugging them into his opinion, where they provided ostensible support. Granting that he checked the citations for accuracy, there is virtually no chance that he engaged in primary archival research of the sort that would take a history dissertation writer years to complete. Gorsuch (political science, Princeton) and Thomas (English literature, Holy Cross) were operating under the same time and resource constraints. Thomas admitted in a footnote that he bases his opinions “on the historical record compiled by the parties,” a practice that allows him to pick and choose the sources that best fit his narrative.

The result is a display of faux erudition. The originalist justices affect mastery of a vast literature, when in truth they barely scratch the surface, with no acknowledgement of what they missed, misunderstood, exaggerated or omitted.

But I don't see anything in his post (apart from assertion) showing that the Justices got the history materially wrong in Dobbs.  Here's everything the post says about the Dobbs opinion's history:

In Dobbs v. Jackson Women’s Health Organization, for example, Justice Samuel Alito looked to what he called our nation’s “history and tradition” to declare that the Constitution “does not confer a right to abortion.” Neither the Fourth Amendment’s “right of the people to be secure in their persons,” nor the Fourteenth Amendment’s guarantees of liberty and equal protection, or even the Eighth [ed.: Ninth!] Amendment’s recognition of unenumerated rights “retained by the people” met Alito’s historical test, which included a survey of “English cases dating all the way back to the 13th century.”

Alito’s tour of historical sources invoked such “eminent common-law authorities” as Sir Matthew Hale, a British jurist in the late 1600s, who once sentenced two “witches” to death and is best known today for advising juries to disbelieve rape victims.

This doesn't cast any real doubt on the history.  To begin, one might suppose from the post that the only sources the Dobbs majority invoked were 13th century authorities and Hale (which I agree standing alone would have been extraordinarily limited and unpersuasive).  Instead, the opinion extensively discusses evidence from eighteenth and nineteenth century America, which Professor Lubet doesn't mention.

Second, while I agree that the 13th century doesn't show much, the majority's  reliance (in small part) on Hale is important to show the absence of an abortion right in the American framers' English heritage.  True, Hale may have had some shockingly unenlightened views on witches and rape, but he's widely cited, not as a moral authority, but as a descriptive authority of the English law of his time.  More importantly, if Professor Lubet thinks Hale was wrong about seventeenth-century English law, he needs some evidence to show that.  If he doesn't think Hale was wrong, there's no point to the snark about witches.

That brings out the third and most crucial point.  The claim throughout the post is that the Justices are getting the history wrong (and, indeed, are unable to get it right, and perhaps dishonestly don't care).  But for that to be shown, one needs evidence.  The Dobbs opinion makes factual claims about the historical treatment of abortion -- in the 1600s, but more importantly in the 1700s and 1800s.  Is this history incorrect?  Is there evidence that abortion was understood as a right in those key times?  Perhaps so, but Professor Lubet doesn't provide any.  And without evidence that the majority got the history wrong, the claim of selective use of history collapses.

I think Professor Lubet's real problem with the Dobbs opinion is not its history but its interpretive methodology.  The starting point for the majority is that abortion shouldn't be recognized as a constitutional right today unless it was recognized as a fundamental traditional right around the time of enactment.  One can criticize that starting point as a mistaken view of constitutional interpretation (even as a mistaken view of originalism).  But that's very different from saying the majority, given its starting point, got the history wrong.  To show the latter, one needs to actually show ways in which the history is wrong.

(I don't mean to pick unduly on Professor Lubet, who is a very distinguished and capable scholar, and whose post is no worse than many criticizing last month's opinions.  But there's been a chorus of claims about the Court's alleged selective history, of which his is typical.  As with his, I think these claims are largely unproven, and actually arise principally from objections to interpretive methodology and modern outcomes rather than historical conclusions.)

(And if anyone can point me to evidence that the Dobbs majority actually got the history wrong in material ways, I'm happy to post it.  I don't have a stake in this, apart from questioning unsubstantiated claims about the Justices' history being wrong or dishonest.)

RELATED:  At Volokh Conspiracy, Josh Blackman comments on an essay by Allison Orr Larson criticizing the Court's history: "Professional Historians" Who File Amicus Briefs Are Motivated As Well.

07/29/2022

Joel Alicea on Dobbs
Michael Ramsey

Though I have further thoughts on West Virginia v. EPA, I'm also shifting to some posts on Dobbs v. Jackson Women’s Health Organization, which calls for some dispassionate evaluation from an originalist perspective.  To begin, here's Joel Alicea (Catholic) in City Journal: An Originalist Victory - The Supreme Court’s Dobbs ruling is a tremendous success for the constitutional theory around which conservatives rallied for nearly half a century.  From the introduction:

To acknowledge this achievement [of overturning Roe and Casey] is to acknowledge the constitutional theory around which the coalition that brought it about rallied for a half-century: originalism. It was originalism that the pro-life movement adopted after Roe and supported through the confirmation defeat of Robert Bork; the attempted defeats of Clarence Thomas, Samuel Alito, and Brett Kavanaugh; and the setback of Casey. The goal of overruling  Roe and Casey bound the conservative political movement to the conservative legal movement, and originalism was their common constitutional theory. Dobbs thus had the potential—as I argued in an earlier essay—to exacerbate the tensions over originalism within the conservative legal movement. It would be viewed as the acid test of originalism’s ability to translate theory into practice, and there would be no avoiding the stakes for the conservative legal movement in the case: “complete victory or crisis-inducing defeat,” as I put it. We now know that it was a complete victory, and it was, in large part, originalism’s victory.

Yet over the last few months, two arguments have been made by some within the conservative legal movement calling that conclusion into question: one from originalism’s critics, the other from originalists themselves. The first argument is that Dobbs is not much of a victory since it returned the issue of abortion to the political process rather than outlawing abortion altogether. The second is that the Dobbs majority opinion is not, in fact, originalist in its methodology, with the implication that, even if Dobbs is a victory, it is not a victory for originalism. Both critiques, explicitly or implicitly, deny that Dobbs represents a triumph for originalism.

Both critiques are mistaken. Dobbs is, without question, a triumph for originalism and a vindication of the support given to originalism by the conservative legal and political movements since Roe was decided almost half a century ago....

And from later on:

The second critique comes from within originalism’s ranks and argues that Justice Alito’s majority opinion in Dobbs is not originalist in methodology. ... This analysis has the implication, sometimes stated by these critics and sometimes not, that Dobbs is not much of a triumph for originalism.

Before delving into this critique, it is important to understand that, for the reasons just discussed, Dobbs is a tremendous victory for originalism, even if the Dobbs opinion could be characterized as non-originalist in its methodology. For one thing, as Lee Strang has pointed out, as originalism has become the dominant theory at the Court, it has influenced how the justices approach decisions that are clearly at odds with originalism, such as Roe and Casey: “[O]riginalism exerts a gravitational effect that pulls errant doctrine back toward the original meaning.” Relatedly, originalism is the theory that made obvious to lawyers, judges, and the general public that the Roe and Casey decisions were insupportable as a matter of constitutional law, and it is the theory that formed the legal views of the justices who voted to overrule those decisions. Neither conventional conservative non-originalism nor common-good constitutionalism achieved any of those things.

The argument that Dobbs is a non-originalist opinion has been advanced by several commentators. The most sophisticated version of the critique comes from Lawrence Solum, widely considered one of the leading theorists of originalism. His views on any question like this must be taken seriously. Solum has not argued that, because he sees Dobbs as a non-originalist opinion, originalism does not deserve credit for the result. But since others have drawn that implication from critiques like his, it is worth addressing on its own terms....

...Thus, according to Solum, because Dobbs accepts a non-originalist substantive-due-process framework and uses the non-originalist Glucksberg test to analyze whether there is a right to abortion under that framework, it is a non-originalist opinion.

But that conclusion fails to account for several important points. ...

07/28/2022

Tom Merrill on West Virginia v. EPA
Michael Ramsey

At Volokh Conspiracy, Tom Merrill (Columbia) is guest blogging about the opinion in West Virginia v. EPA.  Here are his initial posts: 

West Virginia v. EPA: An Advisory Opinion?

West Virginia v. EPA: Was "Major Questions" Necessary?

West Virginia v. EPA: What Would Have Been the Result Under the Chevron Doctrine?

The second post highlights one of my main concerns about the majority opinion, which seemed to bypass an ordinary textualist evaluation of the statute to get to the major questions canon.  From Professor Merrill's analysis:

The Supreme Court held in West Virginia v. EPA that the federal agency did not have authority to adopt what amounted to a cap-and-trade system for existing fossil-fueled power plants because this raised a "major question" of "economic and political significance" as to which Congress had not clearly delegated authority to the EPA. But a close reading of the relevant statute, Section 111 of the Clean Air Act, indicates that the EPA has no authority to issue legally binding emissions standards for existing stationary sources—period.

So the Court did not have to create a novel legal doctrine to limit the authority of the Biden Administration to adopt something like the Clean Power Plan. It could have reached the same result simply by paying close attention to the language of the statute that purportedly granted such authority. ...

[some intricate statutory analysis follows]

In any event, the key point for present purposes is that the EPA is given very different authority to regulate new stationary sources as opposed to existing sources. Under Section 111(b)(1)(B), which applies to new sources, EPA is instructed to "promulgate" (and periodically revise) "standards of performance" for new sources. The statute expressly requires that these EPA-promulgated standards be developed using notice-and-comment rulemaking, which is required under the Administrative Procedure Act when agencies issue legally binding legislative rules.

In contrast, under Section 111(d), EPA is instructed to "prescribe regulations which shall establish a procedure similar to that provided by [Section 110] under which each State shall submit to the Administrator a plan which . . . establishes standards of performance for any existing source for any air pollutant [subject to exceptions]." Note that, under subsection (d), it is the states, not the EPA, that "establis[h]" the "standards of performance." EPA's authority is to establish procedural regulations about the manner in which the states are to submit to the EPA the standards they are establishing.

...

All of which suggests the desirability, to which I will return in the last entry (after the forthcoming third and fourth posts), of courts carefully considering the actual authority delegated to agencies, as opposed to ruminating about "major questions."

Agreed.  I have difficulty extracting from the majority opinion whether the Court thinks the statute is (a) ambiguous, so the major questions canon resolves the ambiguity, (b) textually favorable to the EPA, but the major questions doctrine overrides what would be the technically more textualist reading, or even (c) textually favoring West Virginia, with the major questions doctrine confirming that reading.  This seems to be the key passage from the majority:

Thus, in certain extraordinary cases, both separation of powers principles and a practical understanding of legislative intent make us “reluctant to read into ambiguous statutory text” the delegation claimed to be lurking there. Utility Air, 573 U. S., at 324. To convince us otherwise, something more than a merely plausible textual basis for the agency action is necessary. The agency instead must point to “clear congressional authorization” for the power it claims. Ibid.

The dissent criticizes us for “announc[ing] the arrival” of this major questions doctrine, and argues that each of the decisions just cited simply followed our “ordinary method” of “normal statutory interpretation,” post, at 13, 15 (opinion of KAGAN, J.). But in what the dissent calls the “key case” in this area, Brown & Williamson, post, at 15, the Court could not have been clearer: “In extraordinary cases . . . there may be reason to hesitate” before accepting a reading of a statute that would, under more “ordinary” circumstances, be upheld. 529 U. S., at 159. Or, as we put it more recently, we “typically greet” assertions of “extravagant statutory power over the national economy” with “skepticism.” Utility Air, 573 U. S., at 324. The dissent attempts to fit the analysis in these cases within routine statutory interpretation, but the bottom line—a requirement of “clear congressional authorization,” ibid.—confirms that the approach under the major questions doctrine is distinct. 

These paragraphs seem to conflate positions (a) and (b) -- and perhaps even (c) -- above.   And the result is that it's hard to know when the major questions canon comes into play or how it is justified.

07/27/2022

Patterico on Moore v. Harper and the Independent State Legislature Doctrine
Michael Ramsey

From Patterico at Substack: In Defense of the Independent State Legislature Doctrine, Part 1: The "radical" idea that can be found only in the minds of crazed Federalist Society conservatives . . . and, oh yeah, also in the text of the Constitution itself.  From the introduction:

The Supreme Court has agreed to hear a case called Moore v. Harperinvolving a theory known as the “independent state legislature” doctrine (ISLD). The left confidently declares this doctrine to be radical and insane — a recently concocted bit of buffoonery by Federalist Society types who can’t really be serious. Matthew Cooper of the Washington Monthly calls it “the crazy ‘independent legislature’ doctrine.” The reliably incorrect Ian Millhiser at Vox declares Moore v. Harper to be “perhaps the gravest threat to American democracy since the January 6 attack.” Steve Benen terms the ISLD “an obscure idea” that could be used to overthrow presidential elections. Rick Hasen calls it an “extreme position” that “could help foment election subversion.” NPR says it “could radically reshape elections for president and Congress.” Radley Balko has a typically sober and restrained take, writing that he “[c]an’t emphasize enough how batshit this is.”

What is this obscure, crazy, extreme, radical position that has the lefties (and, as we will see, Michael Luttig) in such a lather? As it turns out, it is really nothing more than reading the Constitution to mean what it says. There are arguments against the ISLD, some of which are plausible and some of which are just silly. It’s my purpose in this set of pieces to begin to evaluate them for you. But any rational discussion of the subject has to acknowledge that the doctrine really does nothing more than give a plain reading to the clear text of the Constitution — which, the last time I checked, was still the supreme law of the land.

The discussion will proceed in at least two parts, because putting them in a single newsletter challenged the Substack length limits. Today, I will discuss the textual basis for the ISLD. I will note that support for the ISLD does not imply that legislatures may follow the Trump Blueprint of holding an election and then changing the results if they don’t like them. That idea actually is insane. Then, for paying subscribers, I will take on the issue of whether state legislative action in this area can be trumped by state constitutional provisions. (Hint: I believe it is not.)

And from later on:

So what does this wacky independent state legislature doctrine say? Well, it says that when the Constitution uses the phrase “the Legislature thereof” in the above passages [that is, Articles I, Section 4 relating to selection of Senators and Representatives and Article II, Section 1 relating to selection of presidential electors], it refers to the state legislature and not the state’s entire tripartite political structure, including the judiciary and the executive.

That’s it. That’s the whole crazy theory: that the word “legislature” means “legislature.” Damn those Federalist Society types!!!1!!!

I have included bold emphasis in my quotes from the Constitution above, to make it clear that the Constitution says that “the Legislature” of a state is the body that decides the “Manner” in which electors are chosen in that state, as well as “The Times, Places and Manner” of elections for Senators and Representatives.

...

Now, of course, it’s not entirely that simple. There is a whole cottage industry of commentary out there designed to convince you that the word “legislature” doesn’t really mean “legislature,” and you may or may not be surprised to learn that these arguments are not always completely insane. I find some of them supremely unpersuasive and others slightly more plausible. If you’re going to discuss this issue intelligently, you should know what these arguments are. Some of these arguments are addressed today, and some will be addressed in a future newsletter.

But before we get to those arguments, I want to caution readers that, just because the state legislatures are in charge under the ISLD, that does not mean they should get to invalidate statewide presidential elections that have already occurred. I think that is one of the biggest concerns of those worried about state legislatures having plenary control over appointing electors....

As the excerpts suggest, this is as fun a read on the independent state legislature doctrine as you're likely to find.  And I think it's largely correct to this extent:  state legislatures (and only state legislatures) get to pick the method of selecting members of Congress and presidential electors.  That conclusion does not answer a secondary question as to the extent to which legislatures are constrained in making this choice by the ordinary rules of legislation in their respective states.  But I do think a fair implication of the constitutional language is that state executives and (especially) judges do not get to make the choice.  And it seems that that may be what has been happening in at least some cases.

(Also I agree that some of the commentary on Moore v. Harper has been extraordinarily intemperate and apocalyptic). 

(Thanks to Andrew Hyman for the pointer).

07/26/2022

Stephen Sachs on Mallory v. Norfolk Southern
Michael Ramsey

Stephen E. Sachs (Harvard Law School) has posted his Brief as Amicus Curiae in Support of Neither Party, Mallory v. Norfolk Southern Railway Co. (42 pages) on SSRN.  Here is the abstract:

Mallory v. Norfolk Southern Railway Co. [pending at the Supreme Court next term] presents the question whether the Fourteenth Amendment’s Due Process Clause prohibits Pennsylvania from requiring corporations to consent to general jurisdiction in order to do business there. The answer to that question is no. Neither the Court’s precedent nor the original Fourteenth Amendment forbids Pennsylvania from requiring such consent, nor from exercising jurisdiction once consent is secured.

What may invalidate Pennsylvania’s requirement, however, is the Court’s modern doctrine on the “dormant” component of the Commerce Clause, which is currently thought to restrict state laws imposing serious burdens on out-of-state economic actors. The difference between due process and dormant commerce matters: substantive requirements of the Fourteenth Amendment may not be relieved by Congress or by treaty, while dormant commerce restrictions might be. The Court should not limit state jurisdiction under a mistaken due process theory that in passing also limits the authority of Congress (and of the President and Senate). Instead, the regulation of interstate corporate activity should be left up to the Interstate Commerce Clause, to be addressed by the state courts on remand.

And from the Summary of Argument, more on the original meaning of the due process clause:

1. Pennsylvania’s registration requirement and its exercise of jurisdiction do not violate due process. The governing precedent is clear on the matter, see Pa. Fire Ins. Co. of Phila. v. Gold Issue Mining &Milling Co., 243 U.S. 93 (1917), and this precedent should not be overruled. In particular, the modern case law on general jurisdiction, from International Shoe Co. v. Washington, 326 U.S. 310 (1945), through Daimler AG v. Bauman, 571 U.S. 117 (2014), down to the present day, is in no conflict with Pennsylvania Fire. These modern cases are explicitly limited to jurisdiction over unconsenting defendants. One may respect the force of these precedents without expanding them to cover defendants whose consent has been granted, albeit grudgingly—and without overruling other precedents along the way.

2. Stare decisis aside, Pennsylvania Fire should not be overruled for the simple reason that it appears to have been correct. The Fourteenth Amendment did not impose substantive rules of jurisdiction, hidden (as if by invisible ink) within the words “due process of law.” It required only that a state court have jurisdiction under applicable sources of law, including principles of general and international law, which have long recognized consent as an appropriate ground for the exercise of jurisdiction. Pennoyer v. Neff, 95 U.S. 714, 733, 735 (1878); see generally Sachs, Pennoyer Was Right, 95 Tex. L. Rev. 1249, 1297–1300 (2017); Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703, 1723–26(2020).

3. These principles applied equally to corporations such as respondent Norfolk Southern Railway Co. American courts traditionally understood corporations as creatures of state law, lacking in their own right the privileges and immunities of citizens. Paul v. Virginia, 75 U.S. (8 Wall.) 168, 178–82 (1869), overruled on other grounds, United States v. Se. Underwriters Ass’n, 322 U.S. 533 (1944). States could deny corporate privileges to foreign corporations altogether, or they could extend these privileges by statute or by comity; they could also impose restrictions on the local exercise of these privileges, such as by requiring consent to suit via the appointment of agents for service of process. See Bank of Augusta v. Earle, 38 U.S. (13 Pet.) 519, 586–91 (1839); Lafayette Ins. Co. v. French, 59 U.S. (18 How.) 404, 407–09 (1856); Pennsylvania Fire, 243 U.S. at 95–96. Courts in this period ... did not disagree on what would happen if a corporation really did register, as Norfolk Southern has, under a statute making registration a ground for general jurisdiction. Such requirements were not regarded as unconstitutional conditions, but as lawful regulations of the corporate form.

Seems probably right to me (as to the due process issue).  Put another way, I'm not aware of any enactment-era or immediate post-enactment practice or commentary suggesting that states couldn't impose this requirement.  I have a lot more reservations about the dormant commerce clause issue, but then I have a lot more reservations about the dormant commerce clause generally.

07/25/2022

Larry Solum's Legal Theory Lexicon: Living Constitutionalism [Updated]
Michael Ramsey

At Legal Theory Blog, Larry Solum has this entry in the "Legal Theory Lexicon": Living Constitutionalism.  From the introduction: 

Constitutional discourse in both the academy and the public sphere has recently included quite a bit of talk about "originalism."  But what about originalism's great historic rival, "living constitutionalism?"  What is living constitutionalism and how is it different from originalism?  A preliminary answer to that question can be offered in the form of a simple definition:

Living Constitutionalism:  Living constitutionalism is the view that the legal content of constitutional doctrine does and should change in response to changing circumstances and values.

This entry in the Legal Theory Lexicon will examine the history of living constitutionalism, discuss the question as to how and whether it differs from originalism, and briefly explore some of the main forms of contemporary academic living constitutionalism. ...

And some interesting history:

The phrase “living constitutionalism” seems to be derived from the title of a book by Howard Lee McBain, The Living Constitution, first published in 1927.  This slim volume ranges across a variety of topics, and it was not intended as rigorous constitutional theory.  The following passage illustrates McBain’s notion of a living constitution:

“A word”, says Mr. Justice Holmes, “is the skin of a living thought.”  As applied to a living constitution the expression is particularly apt; for living skin is elastic, expansile, and is constantly being renewed.  The constitution of the United States contains only about six thousand word; but millions of words have been written by the courts in elucidation of the ideas these few words encase.

In 1936, Charles Beard echoed McBain’s title in an essay published in the Annals of the American Academy of Political and Social Science.  Beard wrote,

Since most of the words and phrases dealing with the powers and the limits of government are vague and must in practice be interpreted by human beings, it follows that the Constitution as practice is a living thing. The document can be read at any moment.  What the judges and other expounders have said in the past can be discovered in thousands of printed pages.  From the records of history, we can get some idea of past practices under the instrument. But what the Constitution as practice is today is what citizens, judges, administrators, lawmakers, and those concerned with the execution of the laws do in bringing about changes in the relations of persons and property in the United States, or in preserving existing relations.  It is the living word and deed of living persons, positive where positive, and subject to their interpretation where open to variant readings. How could it be otherwise? How could intelligence, as distinguished from sophisticated interest, conceive the document as practice in any other terms?[

Another important formulation was provided by Charles Reich in his 1963 article, Mr. Justice Black and the Living Constitution:

[I]n a dynamic society the Bill of Rights must keep changing in its application or lose even its original meaning. There is no such thing as a constitutional provision with a static meaning. If it stays the same while other provisions of the Constitution change and society itself changes, the provision will atrophy. That, indeed, is what has happened to some of the safeguards of the Bill of Rights. A constitutional provision can maintain its integrity only by moving in the same direction and at the same rate as the rest of society. In constitutions, constancy requires change.

And a fourth influential formulation of living constitutionalism was offered in 1986 by Justice William Brennan:

To remain faithful to the content of the Constitution, therefore, an approach to interpreting the text must account for the existence of the substantive value choices and must accept the ambiguity inherent in the effort to apply them to modern circumstances.  The Framers discerned fundamental principles through struggles against particular malefactions of the Crown: the struggle shapes the particular contours of the articulated principles.  But our acceptance of the fundamental principles has not and should not bind us to those precise, at times anachronistic, contours.

The opponents of living constitutionalism offered their own definitions: for example, in 1976, then Associate Justice William Rehnquist wrote The Notion of a Living Constitution, which explicitly criticized living constitutionalism and implicitly endorsed originalism based on the writings of the framers. ...

Like "originalism," the term "living constitutionalism" is best viewed as the name for a family of theories, some of which are explored below. Our next step is to explore the relationship between originalism and living constitutionalism. ...

Somewhat lost in these excerpts and what follows is what I consider to be the essential postulate of living constitutionalism: that judges should impose what they believe to be the best constitutional rules for modern society, taking into account modern circumstances and moral visions.  Some versions of living constitutionalism are more forthright about this claim than others, but in my view all versions of living constitutionalism reduce in large part to this fundamental proposition.  That doesn't mean that living constitutionalism is normatively inappropriate; it means only that living constitutionalism (of whatever variety) must defend this core proposition.

As an aside, almost all of the criticisms of recent Supreme Court decisions in popular commentary claim that the Justices are simply imposing their own practical and moral intuitions as constitutional rules.  If that's true, it only means that the Justices (implicitly) have adopted living constitutionalism.  And that's a bad thing only if living constitutionalism is a normatively inappropriate approach to constitutional interpretation.

UPDATE:  Eric Segall comments:

As I wrote in 1998, the first use of the phrase living constitutionalism actually was in a law review article (in two parts) by Arthur W. Machen in 1900. That article was directly about originalism, our changing constitution, and living constitutionalism. 

07/24/2022

Chad Squitieri on Textualism and the Major Questions Doctrine
Michael Ramsey

At NRO Bench Memos, Chad Squitieri (Catholic): Can Major-Questions Doctrine Actually Get Congress to Legislate Again? On textualism and major questions doctrine in West Virginia v. EPA

In [West Virginia v. EPA], the Court’s conservative majority invoked the “major questions doctrine.” That freshly minted doctrine holds that an administrative agency may only regulate matters of “vast economic and political significance” when the agency is empowered to do so via statutory language that puts matters regulated within the agency’s authority in an especially clear way. In her dissenting opinion, Justice Kagan explained how the major questions doctrine is inconsistent with textualism — the theory of statutory interpretation associated with the late Justice Scalia, pursuant to which judges focus on statutory text, structure, and history. Justice Kagan is correct.

I am a committed textualist and a law professor who researches administrative law topics such as those at issue in West Virginia. Although I strongly agree with the majority opinion and Justice Gorsuch’s concurrence in West Virginia that the Court must enforce constitutional limits on Congress’s ability to delegate lawmaking authority to administrative agencies, the major questions doctrine is not the right way for textualists to do it, as I’ve argued at length elsewhere. That is so for two reasons.

First, the major questions doctrine purports to empower a judge to change how he interprets a statute based on whether he thinks a case presents a question of “major” political and economic significance. But a statute says what it says irrespective of whether it implicates a major political controversy. In any event, judges are not politicians. Judicial decisions premised on political calculations are therefore a risky endeavor, as a judge might be mistaken as to which questions are of true political significance. Indeed, because federal judges are constitutionally insulated from politics, they are particularly ill-suited to identify which questions are of enhanced political importance. Such decisions are better left to our elected representatives, whose political calculations can be assessed at the ballot box.

Second, the major questions doctrine is statutorily suspect. The doctrine flows from the judge-made presumption that Congress intends to decide major political questions itself rather than empower administrative agencies to decide such questions. But the Congressional Review Act exhibits that Congress presumes the precise opposite. Specifically, the Congressional Review Act acknowledges that administrative agencies — not Congress — will answer major questions through “major rules.” The Act’s definition of “major rule” similarly considers economic and political significance, and the Act requires that each major rule be given legal effect unless Congress affirmatively enacts new legislation stating that a particular major rule should be rejected. The major questions doctrine — which essentially refuses to give legal effect to major rules unless Congress clearly granted the agency authority to issue the rule — turns Congress’s chosen regulatory procedure on its head. In short, the Congressional Review Act demonstrates that judges are wrong to presume that Congress intends to decide major questions itself.

I hope to post a few of my own thoughts on West Virginia v. EPA shortly, but as a general matter I think there's a lot of force to this analysis.

RELATED:  At Volokh Conspiracy, Jonathan Adler: Justice Kagan Throws Down the Gauntlet: We Are Not "All Textualists Now" - In her forceful West Virginia v. EPA dissent, Justice Kagan challenges the majority's commitment to textualism.  After describing Justice Kagan's dissent, Professor Adler comments:

While her analysis is powerful, Justice Kagan does not fully grapple with the portions of the Clean Air Act that undermine her conclusions. Rather, she focuses on the word "system" in "Best system of emission reduction," without really engaging with those portions of the Act that indicate such systems must be adopted on a source-specific basis. To be fair, however, the majority opinion does not really call her on it, resting more heavily on the major questions doctrine than on close and careful statutory analysis. (In this regard, the majority opinion has some parallels with the opinion in NFIB v. OSHA.) Justice Gorsuch's concurrence defends the provenance of the major questions doctrine, but it too fails to square off with Kagan on the statutory text.

07/23/2022

Adrian Vermeule on West Virginia v. EPA; Devin Watkins Responds
Michael Ramsey

In the Washington Post, Adrian Vermeule: There is no conservative legal movement - Originalism, textualism and judicial restraint all got short shrift in this term’s major environmental-regulations decision.  From the introduction: 

On the last day of the Supreme Court’s term, in a case called West Virginia v. Environmental Protection Agency, the Court declared that the Clean Air Act does not clearly authorize the EPA to create a Clean Power Plan — in other words, to set standards for emissions from existing power plants with a view to encouraging “generation shifting” of electricity production toward sources that emit less carbon dioxide. If this does not sound like the stuff of great events, it was made so by the court’s approach to the case. Chief Justice John G. Roberts Jr., writing for the majority, announced expressly, for the first time, that the court would apply a “major questions doctrine.” According to the majority, the doctrine holds that in “extraordinary cases” the court will apply a “different approach” than the ordinary legal principles governing the interpretation of statutes. Instead, it will demand clear congressional authorization for agency action that is, in the judges’ view, “highly consequential,” posing questions of “economic and political significance.”

... [A]s this case makes clear, there is no conservative legal movement, at least if legal conservatism is defined by jurisprudential methods rather than a collection of results. West Virginia v. EPA illustrates that every last methodological tenet professed by the movement will be downplayed, qualified or abandoned when the chance arises to limit the regulatory authority of the federal agencies, especially in environmental matters.

The conservative legal movement distinguishes itself from other approaches by declaring itself united not around “results-oriented jurisprudence” but rather around a set of supposedly neutral methods for interpreting legal texts. Conservative jurisprudence — again, as advertised — has four pillars: originalism, textualism, traditionalism and judicial restraint. Although different conservatives emphasize one or the other approach, all are staples of Federalist Society events and lauded in the opinions of conservative justices.
 
It is grimly hilarious, then, that the court’s opinion in West Virginia v. EPA follows none of these methods. ...
 
At the Federalist Society Blog, Devin Watkins responds: Originalism’s Still Around, No Matter What Adrian Vermeule Says.  From the introduction: 

I was taken aback when I read Adrian Vermeule’s recent Washington Post op-ed, which alleges that the U.S. Supreme Court’s West Virginia v. Environmental Protection Agency decision is unprincipled, results-oriented, and bereft of jurisprudential method. Indeed, when Professor Vermeule insists that the decision cannot be reconciled with originalism, he argues that “There is no conservative legal movement”—largely to defend his theory that the opinion’s use of the major questions doctrine and the nondelegation doctrine represent a wholesale abandonment of originalist principles. In particular, Vermeule argues that “the originalist credentials of the nondelegation doctrine are shockingly thin”—alleging that the nondelegation doctrine’s relatively recent emergence makes it incompatible with originalism. Similarly, Vermeule charges that the major questions doctrine (which rests on the nondelegation doctrine) is without grounding in any “venerable maxim or principle of our law; one will search for it in vain in the pages of Blackstone.”

Vermeule’s claims are groundless. An examination of legal history demonstrates that the nondelegation doctrine—and its legal offspring, the major questions doctrine—is deeply rooted in the history of American and English law.

The nondelegation doctrine emerged from English common law before the United States ever existed. What we think of as the English Constitution was a set of unwritten norms that developed over centuries. That Constitution was a set of common understandings that were, in part, developed by a system of governance that made it possible to learn from mistakes: more precisely, those understandings were informed in part by carrying out a terrible misstep of governance, seeing its horrible consequences, and then proclaiming that we must never make such a mistake again.

The incident that triggered the creation of the nondelegation doctrine was the Proclamation by the Crown Act of 1539. ...

07/22/2022

Bruen is Wrong, Because Heller and McDonald are Wrong
David Weisberg

New York State Rifle Association & Pistol Inc. v. Bruen struck down New York’s “proper-cause” requirement for an unrestricted license to carry a concealed firearm.  (Posts herehere, and here discuss the case.)  The correctness of the result in Bruen depends on the correctness of D.C. v. Heller and McDonald v. Chicago, and McDonald depends on Heller.  I think all three were wrongly decided.  (A more complete statement of my view is here.)

Justice Scalia’s majority opinion in Heller is both foundational and fatally flawed.  The greatest obstacle to recognizing its flaw is, ironically, the fact that Justice Scalia is correct in his main dispute with Justice Stevens.  They wrangled over whether the 2nd Amendment (per Stevens) prohibits the federal government from infringing the right of the people to keep and bear arms only while they are serving in a State’s militia, or (per Scalia) prohibits the federal government from infringing that right regardless of militia service.  The drafters could have written: “The right of the people to keep and bear Arms, when serving in the well-regulated Militia of a State, shall not be infringed.”  They didn’t.  Score one for Scalia.

But Scalia’s victory in what apparently is “the main event” obscures his fatal error regarding the source of the right.  Scalia asserts: “[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right.”  (554 US 592, original emphasis.)  The question arises: What is the source of that pre-existing right?  Scalia’s answer: “self-defense … was the central component of the right itself.”  (554 US 599, original emphasis.) 

Arms of all kinds—pistols, rifles, etc.—can be used in self-defense, but so can a brick.  The fact that a firearm can be used in self-defense does not establish that the right to self-defense is the central component of the right to own and use firearms, any more than the fact that a brick can be used in self-defense establishes that the right to self-defense is the central component of the right to buy, keep and use a load of bricks. If self-defense were indeed the central component of the arms-bearing right, one would expect the 2nd Amendment to read something like: “Self-defense, being a right enjoyed by every person, the right of the people to keep and bear Arms, shall not be infringed.”  It does not.  A red flag waves.    

I believe there are irrefutable objections to Scalia’s idea that self-defense is the central component of the pre-existing right.  The first derives from Scalia’s reliance on Blackstone, who “cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.”  (554 US 594.)  But that provision says: “That the Subjects which are Protestants, may have Arms for their Defense suitable to their conditions, and as allowed by Law.”  (554 US 593.)  This may well indicate, as Scalia argued, that the right isn’t limited to militia service, but it contradicts the notion that self-defense was the central component of the right. 

Surely Catholics in England in 1689 had a right of self-defense even if they could not lawfully have arms for their defense, and Protestants themselves were limited in their right to have arms.  I submit that self-defense cannot be the central  component of an arms-bearing right that is limited by social condition or by law, because in 1689, 1791 or 2022 one may do literally anything—including using a weapon that one is prohibited by law from owning or using—in a valid case of self-defense.  Of course, if I use a firearm which I am not licensed to possess or use, I may be criminally liable for that offense.  Nevertheless, I would still have a perfectly valid claim of self-defense if I used that unlicensed firearm to injure or kill a person who presented an imminent unlawful threat of grave bodily harm to me or any other person.

A second objection—Scalia writes:

Like most rights, the right secured by the Second Amendment is not unlimited. … [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.  (554 US 626-27, footnote omitted.)

But the “longstanding prohibitions” on the arms-bearing right are all inconsistent with the supposed central component of the right.

If self-defense is the central component of a right, it would follow that a limitation on the right would be a limitation on self-defense.  But none of Scalia’s limitations on arms-bearing are limitations on self-defense.  If, e.g., I use a firearm in a public building where firearms are prohibited, that prohibition would be irrelevant to my affirmative defense of self-defense.  I could be punished for violating the prohibition, but the prohibition remains irrelevant to the issue of self-defense.  The same irrelevance obtains with respect to every one of Scalia’s limitations.

A third objection: Scalia relies on U.S. v. Cruickshank, 92 US 542 (1876)in which the Court vacated the convictions of white men who had killed several black men; the defendants were convicted of violating the decedents’ rights under federal law and the Constitution by, inter alia, depriving them of rights under the 2nd Amendment.  Cruickshank vacated the convictions because the right referred to in the 2nd Amendment pre-existed that amendment and thus was “not a right granted by the Constitution[.]”  (92 US 553.)  

Justice Scalia cites Cruickshank for two purposes: to confirm that the right referred to in the 2nd Amendment pre-exists the amendment (554 US 592), and to support the “individual-rights interpretation” of the 2nd Amendment.  He says this about the latter:

There was no claim in Cruikshank that the victims had been deprived of their right to carry arms in a militia; indeed, the Governor had disbanded the local militia unit the year before the mob’s attack[.] … We described the right protected by the Second Amendment as “ ‘bearing arms for a lawful purpose’” and said that “the people [must] look for their protection against any violation by their fellow-citizens of the rights it recognizes” to the States’ police power. … That discussion makes little sense if it is only a right to bear arms in a state militia.  (554 US 620, citations and footnotes omitted.)

Thus, Scalia himself asserts (and I agree) that “the States’ police power” underlies the arms-bearing right.  Yet he also approvingly notes Blackstone’s recognition of “the natural right” of self-defense.  (554 US 594.)  But natural rights are the opposite of rights created or protected by “the State’s police power.”  The “self” in “self-defense” contradicts the notion that the right of self-defense is dependent on a State’s police power.  Thus, if the State’s police power enforces citizens’ arms-bearing rights (as Scalia himself asserts), then the natural right of self-defense cannot be the central component of those rights.

Fourth objection: Scalia asserts that “the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right … was codified in a written Constitution.”  (554 US 599.)  But the primary targets of an overbearing federal government would be the States, which is why the 2nd Amendment prefatory clause recites: “A well regulated Militia, being necessary to the security of a free State[.]”  If the States are the entities primarily threatened by a potentially overbearing federal government, it makes perfect sense to have each State determine, through its own laws and constitution, who among its citizens shall be armed.  It makes no sense to say that, because the States might be threatened, every individual person has a right, derived from some fanciful connection to the right of self-defense, to be armed.   

In sum, on a proper understanding of the 2nd Amendment, each State decides who will be permitted to be armed within its borders, and under what conditions that permission will be granted.  The amendment serves only to prohibit the federal government from interfering in those decisions.  That is why HellerMcDonald and Bruen were all wrongly decided.     

John McGinnis on NYSPRA v. Bruen
Michael Ramsey

At Law & Liberty, John McGinnis: Bruen's Originalism.  From the introduction:

The Supreme Court has just finished its most momentous term in over five decades. For the first time in almost a century, a majority of the justices are originalists, at least under a broad definition of the term. And unsurprisingly, originalism emerged as a driving force in constitutional law. At times, it operated beneath the surface of an opinion: Academic work debunking the nonoriginalist concept of “separation of church and state,” for instance, permitted the Court in Carson v. Makin to treat the free exercise clause like any other right without an atextual penumbra emanating from the Establishment Clause. But in New York State Rifle and Pistol Association v. Bruen, originalism was very much on the surface, not only governing the Second Amendment, but perhaps changing the approach to the adjudication of constitutional rights more generally.

Beyond its holding that individuals have a right to bear arms that cannot be denied at the discretion of government officials, the Bruen opinion has at least three important implications for originalist theory. First, it considers carefully how the right to bear arms would have been expected to be applied both before and around the time of its enactment. It thus endorses “expected applications” as a way to give a provision concrete meaning. Second, many, if not most, of these expected applications derive from legal context—both how the Second Amendment reflected previous law and what subsequent law said about how it was to be applied. It thus suggests that this constitutional provision which seems on its face to be written in ordinary language may require a legal gloss to be fully understood. Finally, Bruen stands for the proposition that legal doctrine can be derived from a provision’s original meaning.

And from later on:

It is important to note that Bruen leaves some methodological matters open. First, Justice Amy Coney Barret noted in her concurrence that the Court had not decided on the significance of post-enactment applications or whether the meaning of the Bill of Rights should be decided at the time of their enactment or at the time of the Fourteenth Amendment, which the Court has interpreted to apply these rights to the states. These two lacunae are related. The Court’s consideration of antebellum applications might be understood not merely as post-enactment applications of the Second Amendment as enacted in 1791, but also as pre-enactment applications that contributed to the understanding of the Second Amendment as applied through the Fourteenth Amendment in 1868.  

Second, the methodological moves of Bruen cannot necessarily be imported immediately to the rest of constitutional law. The Supreme Court faces little precedent in its decisions on the Second Amendment and thus its opinions can proceed with greater methodological degrees of freedom, because its methods will not upset the established legal order. Methodological change is much more likely to upset areas of law planted thick with precedents. That disturbance might not upset Justice Thomas, who is willing to overrule any precedent that is clearly erroneous. But no other justices may share that view, let alone a majority of the Court. 

07/21/2022

Eric Segall on Originalism and the Affirmative Action Cases
Michael Ramsey

At Dorf on Law, Eric Segall: Justice Clarence Thomas, Race, and Judicial Hypocrisy.  From the introduction:

[T]his blog post is about ... the mythology and hypocrisy of so-called textualist and originalist judges, especially when it comes to race. And the greatest offender of all is Justice Clarence Thomas.

Next year, the Supreme Court is going to hear two major affirmative action cases. It is likely the Justices will end all affirmative action programs run by the government and private educational institutions that receive government money (virtually all of our colleges and universities). There is a reasonable chance that Justice Thomas will write those decisions given his long-standing opposition to any measures that use race to try and ameliorate past racism.

On this issue, and many others, Justice Thomas and his conservative colleagues on the bench are hypocrites, pure and simple. One can be in favor of judicial invalidation of programs that use race to get past race or one can be an originalist/textualist. But one cannot be both. Yet that is exactly what Thomas claims to be. His jurisprudence on race represents his personal political and sociological preferences, nothing more and nothing less. This term's decisions on guns and abortion reinforce this thesis.

And from later on:

The equal protection clause does not mention nor prohibit the use of racial classifications of any kind, much less racial classifications used by majorities to assist minorities. Although we are all guaranteed the “equal protection of the laws,” what that means is highly contestable in the context of generations of slavery, Black Codes, Jim Crow, red-lining, and other formal, legal, and overt racially discriminatory policies used by whites against people of color.

Of course, from the late 19th century to the mid-20th century, the Court allowed all-white universities to completely exclude people of color so there is no longstanding tradition in this country of color-blindness. We do know that the main purpose of the Fourteenth Amendment, like the other Reconstruction Amendments, was originally to help the newly freed enslaved people integrate into society. There is virtually no historical evidence suggesting that a purpose of the Amendments was to tie the hands of people trying to ameliorate the terrible legacy of American racism. 

Justice Thomas has never seriously explored the Fourteenth Amendment's contemporaneous original meaning as applied to affirmative action....

I agree that the upcoming affirmative action cases are a danger for the originalist Justices if they don't develop more of an originalist argument than they have in the past.  Professor Segall goes on to acknowledge some academic originalist work in this area, see here, and that would be a good place for the Justices to start.

Or, better in my view, if they are inclined to hold against the universities, would be to avoid the constitutional question entirely and rest the decision on the original meaning of Title VI of the Civil Rights Act, which on a quick look seems somewhat more clear.

07/20/2022

Christopher Schmidt: Brown, History, and the Fourteenth Amendment
Michael Ramsey

Christopher W. Schmidt (Chicago-Kent College of Law) has posted Brown, History, and the Fourteenth Amendment (Notre Dame Law Review, Vol. 97, No. 4, 2022) (34 pages) on SSRN.  Here is the abstract:

Legal scholars and historians in recent years have sought to elevate Reconstruction to the stature of a “second Founding,” according it the same careful inquiry and legitimating function as the first. Their work marks the latest iteration of a decades-long campaign to displace the far more dismissive attitude toward Reconstruction that permeated historical scholarship and legal opinions in the first half of the twentieth century. In this Article, I present the flurry of engagement with the history of the Fourteenth Amendment during the litigation of Brown v. Board of Education (1954) as a key transition point in how historians and legal scholars have approached the constitutional history of Reconstruction. I highlight in particular the efforts of the lawyers for the NAACP, who advocated a reading of the Equal Protection Clause that most scholars at the time believed conflicted with the Fourteenth Amendment’s original meaning. With the aid of a group of historians sympathetic to their cause, the NAACP lawyers prepared a brief that presented a bold (if often tendentious) revisionist history of the Fourteenth Amendment that advanced an originalist justification for striking down segregation laws. The Supreme Court did not accept the NAACP’s reading of history; in his Brown opinion, Chief Justice Earl Warren concluded the historical record was “inconclusive” on the question of school segregation. Yet the basic assumption about Reconstruction history on which the NAACP legal brief turned—that the aspirations of the most egalitarian voices of the day deserve special weight in assessing the meaning of the Reconstruction amendments—has today become a core tenet of legal and historical scholarship.

Via Dan Ernst at Legal History Blog, who adds an interesting postscript.

Perhaps this is too cynical, but it seems to me there are reasons, unrelated to the merits. that the Court rejected the NAACP's conclusions.  A number of the the Justices were heavily invested in the idea that originalism was a defective approach.  Justice Jackson had his famously snide comment, concurring two years earlier in Youngstown Sheet and Tube v. Sawyer, about how unhelpful founding-era materials were.  Justices Frankfurter and Douglas (in particular) were committed to the New Deal revolution that abandoned meaningful originalist enumerated powers limits on Congress.  Chief Justice Warren was a politician who (one may presume) had a politician's view of how to resolve policy disputes.  And above all, when the Court rejected the original meaning and ruled against segregation anyway, it was emphatically the Court's decision to do so.  For this reason, Brown has been celebrated as a triumph of the Warren Court, not as a triumph of the reconstruction Congress.  So the Justices had powerful incentives not to rest their result on original meaning, even if they could have.

07/19/2022

Jacob Weinrib: What is Purposive Interpretation?
Michael Ramsey

Jacob Weinrib (Queen's University) has posted What is Purposive Interpretation? (University of Toronto Law Journal (forthcoming 2023) (39 pages) on SSRN.  Here is the abstract:

Purposive interpretation leads a double life. As a matter of constitutional practice, it forms the doctrine through which courts in Canada and around the world determine the concrete protections that abstract constitutional rights afford. However, as a matter of constitutional theory, purposive interpretation is routinely rejected as either an empty phrase that offers no alternative to established theories of constitutional interpretation or a dangerous doctrine that provides no basis for distinguishing between justified and unjustified interpretations of constitutional rights. This essay formulates a conception of purposive interpretation that is not vulnerable to these objections. The purposive approach to the interpretation of constitutional rights follows from a set of ideas about how legal interpretation differs from interpretation more broadly, how constitutional interpretation differs from interpretation in other legal domains, and how constitutional interpretation constrains both the purposes it attributes to particular provisions and the application of those purposes to particular contexts. My aim is to show that these ideas fit together in a coherent doctrinal whole that is neither empty nor dangerous. Purposive interpretation is not empty because it offers a genuine alternative to the presuppositions and structure of opposing interpretive paradigms. Purposive interpretation is not dangerous because it provides a principled set of resources for distinguishing between justified and unjustified interpretations.

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

My view is that there is good and bad purposivism.  On the good side, one can reasonably ask: what specifically were the enactors trying to accomplish with the enactment?  That can then be used to resolve textualist ambiguities (if you are a textualist) or even to depart from the text in a way that still tries to preserve the original design of the enactment (if you are a nontextualist originalist).  Both of the these are entirely consist with originalism, albeit different forms.  But there's also a bad side, where the interpreter posits a very broad purpose and then asks how (in the interpreter's view) best, given modern circumstances, to accomplish that purpose, irrespective of what the enactors actually did or thought.  The latter approach is not originalism, and I'd say it's not really true purposivism either -- it's really just imposing the interpreter's own policy views.

07/18/2022

John McGinnis on Originalism and the 2021-2022 Supreme Court Term
Michael Ramsey

At Liberty Law Talk, The Constitutional Pivot, with John O. McGinnis, hosted by John G. Grove:

Over the last few weeks of the recently-concluded term, the Supreme Court handed down one blockbuster decision after another on issues including religious liberty, guns, the limits of the administrative state, and of course abortion. The decisions have sent shockwaves through the political system, and many are saying that this term will go down as one of the most important turning points in the history of the Court, as it shifts sharply in a more originalist direction.

John McGinnis joins Liberty Law Talk to discuss the monumental decisions in Dobbs v. Jackson Women’s HealthNY State Rifle & Pistol Association v. BruenCarson v. MakinKennedy v. Bremerton, and West Virginia v. EPA.

07/17/2022

Jack Balkin Has Questions about NYSRPA v. Bruen
Michael Ramsey

At Balkinization, Jack Balkin: Text, History and Tradition: Discussion Questions on New York State Rifle And Pistol Association, Inc. v. Bruen.  From the introduction: 

Here are the discussion questions for New York State Rifle And Pistol Association, Inc. v. Bruen that will appear in this year’s Levinson Balkin Con Law supplement. These questions arose out of conversations with my colleague Reva Siegel. 

I want to point out that one of the most important methodological developments is a sea change in originalism practiced at the Supreme Court. The old formula for originalists was “text, history, and structure.” The new formula that appears to be emerging is “text, history and tradition.” 
 
As noted below, there are important differences between originalism and traditionalism, and sometimes the two are actually at cross-purposes. However, the Justices are blurring these distinctions, and it will be interesting to see how conservative originalists in the academy respond to the Court’s focus on traditionalism. 
 
 In my 2013 article, The New Originalism and the Uses of History, I argued that regardless of the theories that academic originalists offer, originalist arguments by courts are hybrids, which include, whether explicitly or implicitly, appeals to national ethos, tradition, and honored authority. This Supreme Court Term confirms this tendency. 
 
 Another very interesting feature of Bruen is that Justice Thomas doubles down on the notion that originalist judges and Justices don’t have to be historians to practice originalism well, because they can just rely on the briefs submitted by the parties and amici. (See n.6 of Thomas’s opinion: “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” United States v. Sineneng-Smith, 590 U.S. ––––, ––––, 140 S.Ct. 1575, 1579, 206 L.Ed.2d 866 (2020). Courts are thus entitled to decide a case based on the historical record compiled by the parties.”.) This passage in Bruen is likely to spark a great deal of academic writing, as it should!
 
He has 13 questions.  Here are the first two:
 
 1. Text, history and traditionBruen exemplifies how the Court’s conservative Justices have tended to merge originalist arguments with arguments from tradition. 

Original meaning and tradition are not the same thing. Originalists generally look to the meaning or understanding of texts at the time of adoption. A focus on tradition is a bit different: instead of looking at meanings or understandings, it looks at the continuity of practices over long periods of time. Traditions do not have to begin at any particular point in time and they may change over time. For example, if a right was not recognized at the Founding but there is a long tradition of protecting it that developed in the 1880s, there would not be an originalist argument for the right but it there would be an argument from tradition. 

Thomas’s text and history test tends to merge considerations of original meaning and tradition. He argues that people have a presumptive right to engage in conduct covered by the amendment’s text. Government may only regulate this conduct if there is a historical tradition of regulating it. By “this Nation’s historical tradition of firearm regulation,” he means a tradition of firearm regulation existing at the time of the adoption of the Second Amendment—or possibly at the time of adoption of the Fourteenth Amendment, which applies the Amendment to the States. Thomas’s opinion does not decide whether we look to the tradition of regulation as of 1791 or 1868. Instead, his opinion runs these two periods together, assuming that they constitute a single unbroken tradition. What should the Court do if the tradition of regulation is different in the two eras? 

[Aside: the last question echoes Michael Dorf's post, noted here.  The broader point about tradition I agree is a puzzling one, because the majority does not seem to distinguish between history and tradition, even though it says it is looking at both.]

2. The problem with tradition. Tests based on tradition tend to have three problems. The first is that arguments about tradition are told from the perspective of the present, and necessarily involve stories we tell ourselves about what the past must have been like. But because human behavior over a wide range of places and times may not actually fit neatly into a simple cohesive narrative, courts must tell a story that overlooks or excludes certain features of the past as not counting or as exceptions. (Thomas does this, for example, with Texas’s 19th century regulations). 

Second, arguments for following tradition assume that the tradition is wise or morally worthy from today’s perspective. But if the tradition is outmoded, premised on facts that no longer hold true today, or reflects immoral or unjust practices, it is not clear why we should follow the tradition today. So, for example, the practices of gun regulation in the late eighteenth century assumed weapons that were far less powerful, agile, and effective than today’s guns, operating in much less densely populated areas. They may also have reflected different moral assumptions about violence. 

Third, if we are using tradition only as evidence of original meaning, it is not enough to show that a practice existed. One must also show that people self-consciously understood the practice—which might be quite different in diverse contexts and places—to be part of the meaning of the text that they adopted. In the case of firearm regulation, this may be very difficult to do.

Agreed that these all seem to be problems.  I'm somewhat doubtful about the move to tradition, depending on what it means (though again, I'm not sure it added anything in Bruen; as discussed here, the Bruen majority seems to be a fairly straightforward originalist analysis).

07/16/2022

Julian Davis Mortenson & Nicholas Bagley Reply to Critics on Nondelegation
Michael Ramsey

Julian Davis Mortenson (University of Michigan Law School) & Nicholas Bagley (University of Michigan Law School) have posted Delegation at the Founding: A Response to the Critics (Columbia Law Review, forthcoming) (37 pages) on SSRN.  Here is the abstract:

This essay responds to the wide range of commentary on "Delegation at the Founding," which is available at http://ssrn.com/abstract=3512154. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both.

As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective of the authorizing principal) at the same time. As a formalist matter, the separation of powers objection is thus evanescent—subject to trivial reframing. In making rules pursuant to congressional instruction, administrative agencies are simultaneously exercising both legislative power (by promulgating authoritative legal commands) and also executive power (by implementing Congress’s authoritative instructions). This is *not* a functionalist argument; it is an insistent demand to take formalism seriously: the same government action was understood as both executive and legislative—and always was.

As a matter of eighteenth-century governance practice, late eighteenth-century Anglo-American law was awash in legislative delegations. Nor did the adoption of the Constitution mark a change in that practice: its text does not specify new limits on delegation; no one in the ratification process suggested it might be read to do so; and vesting clauses in state constitutions with identically tripartite structures (and explicit separation-of-powers clauses) were understood to permit broad delegations. Early practice, in fact, suggests the Founders harbored no such belief. The First Congress passed dozens of laws delegating wide discretion to the President, to cabinet secretaries, to federal judges, to territorial governors, and to tax officials. No meaningful nondelegation objection was raised to any of these laws—and this at a time when legislators were inventing dubious constitutional arguments at the drop of a hat. The originalist argument for nondelegation doctrine fails on its own terms.

07/15/2022

NYSRPA v. Bruen on the Merits
Michael Ramsey

Moving beyond the methodological aspects (see here and here), what about the outcome in New York State Rifle & Pistol Association v. Bruen?  Here are some quick thoughts (with apologies to those on both sides who have spent a lot more time than I have on this case).

First, the text on its face seems to indicate a right to carry guns in public (subject to regulations).  The Second Amendment gives a right to "keep ... arms" -- that's the right, to have arms in the home, recognized in Heller -- and, separately, a right to "bear arms", meaning carry arms presumably outside the home.  (The prefatory clause, alluding to a "well regulated militia," signals that the right is subject to substantial regulation.)

The Bruen majority opens its substantive analysis with this point:

Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms. As we explained in Heller, the “textual elements” of the Second Amendment’s operative clause— “the right of the people to keep and bear Arms, shall not be infringed”—“guarantee the individual right to possess and carry weapons in case of  confrontation.” 554 U. S., at 592.

Heller further confirmed that the right to “bear arms” refers to the right to “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.” Id., at 584 (quoting Muscarello v. United States, 524 U. S. 125, 143 (1998) (Ginsburg, J., dissenting); internal quotation marks omitted). This definition of “bear” naturally encompasses public carry. Most gun owners do not wear a  holstered pistol at their hip in their bedroom or while sitting at the dinner table. Although individuals often “keep” firearms in their home, at the ready for self-defense, most do not “bear” (i.e., carry) them in the home beyond moments of actual confrontation. To confine the right to “bear” arms to the home would nullify half of the Second Amendment’s operative
protections.

...

The Second Amendment’s plain text thus presumptively guarantees petitioners Koch and Nash a right to “bear”
arms in public for self-defense.

Agreed.  Second, I would say that this presumptive reading could be overcome by a historical showing that public carry was broadly prohibited at the relevant time (we'll leave aside what that time is).  Evidence of such broad prohibitions would show that, despite the most apparent reading of the text, the right it invokes didn't actually extend generally to public carry.

That's pretty much the majority's approach (with somewhat different phrasing).  The opinion launches a extensive historical account of gun regulations, concluding that there were not broad prohibitions on public carry (although there were regulations of the manner of public carry).  And -- assuming that's correct -- that should be enough to take care of this case (with some serious methodological questions for future cases, as noted in prior posts).  The New York law prevents an overwhelming majority of the people from bearing arms outside the home.

But perhaps the majority's history is wrong.  Saul Cornell -- the preeminent legal historian on the anti-gun-rights side --says it is in this post at SCOTUSBlog: Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions.  Typically, he does not pull any punches: 

The majority opinion in New York State Rifle & Pistol Association v. Bruen invokes the authority of history but presents a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation such as Bruen. Rather than applying a history, text, and tradition approach, it would be more accurate to characterize Justice Clarence Thomas’ decision as an illustration of the current Supreme Court’s new interpretive model: “Fiction, Fantasy, and Mythology.” Indeed, the distortion of the historical record, misreading of evidence, and dismissal of facts that don’t fit the gun-rights narrative favored by Thomas are genuinely breathtaking in scope. Thomas has taken law-office history to a new low, even for the Supreme Court, a body whose special brand of “law chambers history” has prompted multiple critiques and been a source of amusement for generations of scholars and court watchers.

...

Perhaps the most egregious distortion of the historical record occurs in the majority’s false claims about regulation during Reconstruction. Evidence of robust regulation of guns in public featured prominently in the briefs filed in the case, but the majority either dismisses contrary evidence as unrepresentative or simply ignores evidence it finds inconvenient. Here is what Thomas says about Texas, a state whose robust gun laws, he reluctantly concedes, undeniably support New York’s approach to public safety. “We acknowledge,” Thomas wrote, “that the Texas cases support New York’s proper-cause requirement, which one can analogize to Texas’ ‘reasonable grounds’ standard. But the Texas statute, and the rationales set forth in English and Duke, are outliers.”

Texas, it is worth stressing, was hardly alone in embracing a robust view of state police-power authority over regulation of arms in public. ... Twelve million Americans during the Reconstruction period were living under state constitutional arms-bearing provisions that reflected this new regulatory paradigm, a model that forged an indissoluble link between the right to regulate and the right to bear arms. ...

I agree that if the relevant historical practice was to prohibit large numbers of the people from carrying arms in public, that is a serious problem for the Bruen majority.  (That's a thing about originalism: it is -- or should be -- falsifiable).  But (again on a quick look) I'm not persuaded Professor Cornell has made his case.

Professor Cornell has a longer article on the topic in the UC Davis Law Review, and I haven't examined in detail all of his evidence there.  In his SCOTUSBlog post, he invokes two specific laws: the 1868 Georgia Constitution, and an 1873 Jersey City ordinance.  I assume he thinks these are his best examples.

But they aren't entirely persuasive.  The Georgia constitutional provision states:

The right of the people to bear arms in defense of themselves and the lawful authority of the State, shall not be infringed, but the Legislature may prescribe the manner in which they may be borne.

That doesn't grant authority to prohibit bearing arms, only to regulate the manner "in which they are borne," which is manifestly not what the New York statute in Bruen did.  (See Randy Barnett's important post on this distinction.)

The Jersey City ordinance provided:

[N]o person shall, within the limits of Jersey City, carry, have or keep on his or her person concealed, any slung-shot, sand-club, metal knuckles, dirk or dagger not contained as a blade of a pocket knife, loaded pistol or other dangerous weapon. 

Although perhaps not completely clear, that appears to me to be a prohibition of concealed carry, not a prohibition of all public carry.  If so, again it's a regulation of the manner of carry, not a prohibition (and so not relevant to Bruen).

To be sure, the history of gun regulations is complex, so I don't mean to be definitive. But I'm not seeing conclusive evidence that public carry was widely prohibited (as opposed to being regulated) in the relevant period.  And without that evidence, the majority's conclusion seems sound.

07/14/2022

Randy Barnett on Originalist Methodology in NYSRPA v. Bruen
Michael Ramsey

Here is another important post on originalist methodology in New York State Rifle & Pistol Association v. Bruen: At SCOTUSBlog, Randy Barnett, A minor impact on gun laws but a potentially momentous shift in constitutional method. It's important enough (and expresses some of my own reservations about the majority's methodology) that I'll quote it at some length.  First, as to background: 

At the level of method ... the majority in Bruen adopted a “text and history” approach to constitutional rights that may prove to be momentous, not only for the Second Amendment but for other rights as well. In adopting this approach, the majority purported to reject the much-criticized “tiers of scrutiny” approach that has been a widespread feature of constitutional law since the 1950s. Having heard about the text and history approach before, I was very curious to see how it would work in practice. I am still not sure I completely understand it.

After establishing that there is a constitutional right to carry a firearm outside the home — which was conceded by both parties — Thomas then looked to the history of regulating the right to arms to see if there was any requirement similar to New York’s for carrying outside the home. Apart from some statutes he characterized as “outliers,” Thomas concluded that this type of regulation was not found in the relevant history and therefore it infringed on the right.

This leads to some questions:

I supposed the obvious question to ask is whether a “shall issue” regime like [Washington D.C.'s], or something analogous to it, can be found in our history. I would think not. But still the court denied it was questioning such a regime.

Yet the court also said that “because any permitting scheme can be put toward abusive ends, we do not rule out constitutional challenges to shall-issue regimes where, for example, lengthy wait times in processing license applications or exorbitant fees deny ordinary citizens their right to public carry.”  So maybe the D.C. regulatory regime is vulnerable after all.

How would the court evaluate the burdens imposed by these regulations under its new approach? Would it ask whether 16 hours of classroom instruction is just too much? Should any classroom instruction be required? Is this an “undue burden” test of the sort that had previously been adopted in Planned Parenthood v. Casey?

Agreed, these seem like difficult issues and I don't know how the majority would deal with them.  For example, I doubt there's any history of training requirements.  If not, does that mean training requirements are unconstitutional? Maybe, but just because a regulation didn't exist doesn't it wouldn't have been allowed -- perhaps it just hadn't ever been suggested. A modest training requirement doesn't restrict the ability to bear arms much (and seems consistent with the idea of a "well regulated" militia).  More broadly, I don't know how the majority would deal with regulations that had never been contemplated at the relevant time (whether 1791 or 1868).

The majority says it will deal with these issues though "analogical reasoning", citing (yikes!) nonoriginalist Cass Sunstein: 

Much like we use history to determine which modern “arms” are protected by the Second Amendment, so too does
history guide our consideration of modern regulations that were unimaginable at the founding. When confronting such
present-day firearm regulations, this historical inquiry that courts must conduct will often involve reasoning by analogy—a commonplace task for any lawyer or judge. Like all analogical reasoning, determining whether a historical regulation is a proper analogue for a distinctly modern firearm regulation requires a determination of whether the two regulations are “relevantly similar.” C. Sunstein, On Analogical Reasoning, 106 Harv. L. Rev. 741, 773 (1993). And because “[e]verything is similar in infinite ways to everything else,” id., at 774, one needs “some metric enabling the analogizer to assess which similarities are important and which are not,” F. Schauer & B. Spellman, Analogy, Expertise, and Experience, 84 U. Chi. L. Rev. 249, 254 (2017). For instance, a green truck and a green hat are relevantly similar if one’s metric is “things that are green.” See ibid. They are not relevantly similar if the applicable metric is “things you can wear.”

I'm skeptical that this provides much guidance for regulations lacking close analogies (of which I think there are probably a lot). I'm not sure how it would be applied other than asking how much of a burden the regulation would place on the right, versus how much benefit the government would gain from it (which is the test the majority says it is not applying).  This isn't such a problem in Bruen itself, where the regulation seems to exclude a large percentage of the people from exercising the right at all, but it seems likely to be a serious problem in cases involving somewhat less-intrusive regulations (such as training requirements).

Back to Professor Barnett: 

There is, however, an even more fundamental question raised by Thomas’ text-and-history approach. It seems to assume that, once we use history to identify the “outer contours” of a constitutional right, then any such right bars not only prohibitions on its exercise but also trumps any statutory regulation of it. Prior to the New Deal, however, rights were not viewed as trumps on the regulatory power of government. Instead, the existence of a right barred the complete deprivation of it — that is, a prohibition — and statutes were “strictly” or “equitably” construed to avoid this result. And the existence of a right also required that a regulation be within the power of a legislature to enact. At the federal level, this meant a power delegated to Congress by the Constitution. At the state  level, this meant what is called the state’s “police power.” While broad, the state police power was not unlimited.

Legislative acts that were not good-faith exercises of such powers were considered “pretended” legislation, and not truly a law. As John Marshall explained in McCulloch v. Maryland, “should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal … to say that such an act was not the law of the land.” (Emphases added.)

To assess whether this is the case requires a court to evaluate whether there is a sufficient fit between the ends of the legislation and the means adopted to achieve it. Or, as Alexander Hamilton put the matter: Congress “has only a right to pass such laws as are necessary and proper to accomplish the objects intrusted to it,” and “the relation between the measure and the end … must be the criterion of constitutionality.” This sounds like a means-ends analysis to me.

He concludes by proposing an alternative:

Perhaps a better approach would have been to distinguish between prohibiting and regulating the exercise of a right. Any prohibition of the exercise of a constitutional right is per se unconstitutional. In contrast, a regulation of how a right may be exercised is permissible, provided the ends of such a regulation are within the legislative power of Congress or a state.

Under this distinction, because the “special need for self-protection” that was required by the New York system was “distinguishable from that of the general community,” the law amounted to a prohibition on ordinary citizens exercising their constitutional right to bear arms outside the home. Not only was this the scheme’s effect; it was also its intention.

By contrast, D.C.’s “shall issue” regime provides a means by which every “law-abiding” (per the background check) citizen of D.C. can obtain a permit, so it is not a prohibition of the exercise of a constitutional right. Unlike the New York law, it is a “regulation” because it proscribes the manner of exercising the right.

Seth Barrett Tillman: What Court (if any) Decided Ex parte Merryman?
Michael Ramsey

Seth Barrett Tillman (National University of Ireland, Maynooth Faculty of Law) has posted What Court (if any) Decided Ex parte Merryman?—A Response (5 pages) on SSRN.  Here is the abstract:

This article explains why it is incorrect to characterize Ex parte Merryman as a decision of the Supreme Court of the United States, or as a decision for the United States Circuit Court for the District of Maryland, or as a decision for the United States District Court for the District of Maryland.

Merryman was not a decision of any court. Rather, it was decided by Chief Justice Taney under special authority granted to all Article III Justices and judges under the Judiciary Act of 1789.

As the essay makes clear, people get this wrong all the time, especially in attributing Merryman to the Supreme Court.