10/17/2021

Gregory Ablavsky: The Lost History of the Private Land Claims
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted Getting Public Rights Wrong: The Lost History of the Private Land Claims (Stanford Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

Black-letter constitutional law distinguishes “private rights,” which must be litigated before an Article III tribunal, from “public rights,” which Congress may resolve through administrative adjudication. Yet both the Supreme Court and scholars have long struggled to define this distinction. Recently, many have turned to history for clarity, especially to Murray’s Lessee, the 1856 case that inaugurated the public rights doctrine. As part of a broader critique of the administrative state, Justices and scholars have sought to use this history to cabin the scope of constitutionally permissible administrative adjudication.

This Article intervenes in this debate by suggesting that administrative adjudication had a much broader scope in the nineteenth century than previously thought. It examines the sole example of public rights cited in Murray’s Lessee: preexisting property rights held by the European settlers in territories ceded to the United States. These “private land claims,” though almost entirely neglected by scholars of public rights today, were the subject of an enormous amount of nineteenth-century law and jurisprudence. Both the antebellum Congress and Supreme Court concluded that Congress enjoyed considerable discretion over the resolution of these claims, including through binding and preclusive decisions by non-Article III tribunals. The Court reached this conclusion, I suggest, based on a dichotomy between “perfect” title—where complete legal title had passed to the claimant—and “imperfect” title, where some further government act was required before the claimant enjoyed “complete” ownership. But this framework did not mean that private land claims, whether perfect or imperfect, were considered “privileges,” a category that other scholars have used to explain the public rights doctrine. Rather, the era’s caselaw and jurisprudence described both perfect and imperfect titles as vested property rights that the government could not take away. Moreover, by century’s end, the distinction between perfect and imperfect titles had collapsed in favor of a broad and durable embrace of federal power.

This history does not offer a new bright-line test to distinguish public from private rights. But it does challenge influential prior accounts in caselaw and scholarship by suggesting that, from the very beginning, the category of “public rights” encompassed vested rights to property that were routinely adjudicated before federal administrative tribunals.

(Via Dan Ernst at Legal History Blog.)

10/16/2021

More from Stephen Halbrook on the Historical Right to Bear Arms
Michael Ramsey

Stephen Halbrook has wrapped up his guest-posting at Volokh Conspiracy with two additional posts:

A Surprise Amicus Brief in the Challenge to New York's Gun Carry Ban (a sharp commentary on Judge Michael Luttig's brief in support of the state)

The Right to Bear Arms in Historical Context

From the second post:

The Boston Massacre was an important event leading up to the Revolutionary War. It also provides important evidence about the scope of the right to keep and bear arms. The Massacre was a clash between British soldiers and colonists in downtown Boston that resulted in the death of five colonists. The British soldiers were tried for murder, and they were defended by one of the most prominent and accomplished lawyers in America—future President John Adams.

A key issue was whether the soldiers acted in self-defense against the assembled colonists, many of whom were armed with clubs. In making his plea to the jury, Adams did not assert that the colonists committed an act of unlawful provocation merely by carrying arms. Instead, he conceded that "here every private person is authorized to arm himself, and on the strength of this authority, I do not deny the inhabitants had a right to arm themselves at that time, for their defence, not for offence, that distinction is material and must be attended to." 3 Adams, Legal Papers 248 (1965).

And from later on:

Opponents of an individual right to bear arms often seek to engage the debate at a more abstract level that fails sufficiently to grapple with the details of historical events. A particularly egregious example of this is the attempt by some researchers to use a "corpus linguistics" analysis to relitigate Heller and show that the Second Amendment does not protect an individual right to bear arms. These analysts run phrases like "bear arms" through databases containing a large number of Founding-era texts, categorize the hits into various senses, and then tally up the results.

There are a whole host of conceptual and practical problems with this sort of analysis, which others have explored in depth. See, for example, Mark W. Smith & Dan Peterson, Big Data Comes for Textualism: The Use and Abuse of Corpus Linguistics in Second Amendment Litigation (forthcoming Drake L. Rev. Spring 2022), as well as the amicus brief of the NRA Civil Rights Defense Fund. But one key problem with it is that an analysis that simply searches databases and counts up hits fails to engage with the contextual information necessary to conduct a meaningful inquiry into the meaning of a constitutional right. This is starkly illustrated by the fact that while the overly general term "bear arms" may be used most often in a military sense, the correct search term is "the right to bear arms," and it can only refer to an individual liberty.

 

 

10/15/2021

Lael Weis: Originalism and Constitutional Amendment
Michael Ramsey

Lael K. Weis (Melbourne Law School) has posted Originalism and Constitutional Amendment (Chapman Law Review, forthcoming) (68 pages) on SSRN.  Here is the abstract:

This article examines a problem that constitutional amendment uniquely poses for originalism, namely: how should changes to a constitution’s text that enact a new set of understandings be reconciled with the understandings of the constitution’s framers? This issue poses a significant challenge for originalism, and yet it has been overlooked by scholarship to date. This article is a first effort to tackle this issue. It develops an originalist approach to amendment that identifies which amendments pose the problem and that provides a method for addressing it. In developing this approach, the article’s analysis makes two significant contributions to the evaluation and understanding of originalism. First, it provides a critical missing component of originalist interpretive theory that is needed for its practical application. As the article’s central examples demonstrate, constitutional amendment poses a real challenge for originalism and not a merely hypothetical one—even for old constitutions that have proven difficult to amend. Second, by putting originalism in conversation with current debates about constitutional amendment, the article’s analysis draws attention to implications for issues concerning the scope of the amending power. The originalist approach that it develops places interpretive constraints on the amending power, requiring amenders who wish to override original understanding to do so clearly. This invites comparison with “implicit unamendability” doctrines, a controversial but increasingly common set of practices whereby courts imply strict constraints on the amending power in order to prevent its abuse. This comparison suggests that originalism may provide an attractive—albeit more limited—alternative for those who are concerned about abusive amendment but have reservations about implicit unamendability. In making these two contributions, the article thus helps resituate and reinvigorate interest in originalism, demonstrating that the theory holds broad interest for constitutional theory and practice beyond narrow and technical scholarly debates between originalists and their critics.

10/14/2021

Stephen Halbrook on the Historical Right to Bear Arms
Michael Ramsey

At Volokh Conspiracy, Stephen Halbrook is guest-blogging about the historical aspects of the briefing in New York State Rifle & Pistol Association v. Bruen, the Supreme Court's pending public carry case. Here are his initial posts:

New York's Futile Search for Historical Precedents for its Handgun Carry Restrictions

Does a Medieval English Statute Supersede the Second Amendment?

Don't Know Much About History

From the first post:

In my recent book, The Right to Bear Arms: A Constitutional Right of the People or a Privilege of the Ruling Class?, I extensively survey the historical evidence and conclude that the founding generation understood the right to bear arms to be a genuine right not subject to the types of limitations New York and other "may issue" states place upon it. Nothing that New York and its amici have said undermines that conclusion. Indeed, my book anticipates and addresses most if not all of the arguments made and primary historical sources cited by New York and its amici.

In this series, I plan to address several key points of contention among the parties about what history shows about the right to carry, including the Statute of Northampton and its American analogues and the so-called "Massachusetts model" of regulating individuals carrying firearms in a threatening manner through a surety system. I also will address the historical arguments made in the amicus brief filed by former Judge Michael Luttig, who surprisingly to many supports the State of New York in this case.

At the outset, however, I will begin by emphasizing the overwhelming evidence that during the Founding generation the carrying of firearms in public was a common and unremarkable practice. This evidence is impossible to square with the argument that public carry was heavily restricted and in most cases criminal at the Founding, and it therefore casts serious doubt on New York's arguments to the contrary before the details of those arguments are even assessed.

10/13/2021

Eric Segall on the Internet, Free Speech, and Originalism [with my comments] [Updated]
Michael Ramsey

At Dorf on Law, Eric Segall: Social Media Regulation, The Limits of Originalism, and the Supreme Court's Obsession with Free Speech. From the core of the argument:

... [I]t should be obvious to everyone that the worlds of 1791 and 1868, or more specifically, the first amendment's original meaning, simply are of no use to judges or scholars trying to figure out what limits the Constitution places on government regulation of the internet. Unfortunately, this reality is often twisted by self-professed originalists and at the most visible of times. For example, Professor Larry Solum was the only legal scholar asked to testify about originalism at the confirmation hearing of then Judge Neil Gorsuch, and he said the following: 

There was no Internet when the First Amendment was written in 1791. Today, Americans can speak over the Internet. The application of the freedom of speech to a speech broadcast over the Internet is very simple. Speech is speech, whether it is in person, amplified by speakers, or transmitted over the Internet. The Constitution was written in language that can be applied to new circumstances. There was no state of Nebraska when the Constitution was ratified, but there is no difficulty in applying the constitutional provision that grants each state two Senators to Nebraska.

Similarly, [Justice Scalia] once said: "Of course [constitutional] provisions have to be applied to new phenomena like the radio and the Internet....It is essential to originalism, as it is not to so-called 'evolutionary constitutional jurisprudence,' to know the original meaning of constitutional provisions." And Justice Gorsuch has written that as "originally understood, the First Amendment protected speech. That guarantee doesn’t just apply to speech on street corners or in newspapers; it applies equally to speech on the Internet."

Whom are these people talking to? Of course the first amendment applies to new forms of speech and expression, just as evolved methods of torture implicate the eighth amendment and electronic surveillance triggers the fourth amendment. But those banal observations do not address whether the alleged original meaning of the first amendment can help us sort out hard issues regarding government regulation of Facebook or Twitter. It cannot, and we shouldn't pretend that it can. ... The internet changed the world in ways no one could have imagined a century or two centuries ago. The ability of one person sitting at home to reach millions of people represents a new kind of communication that brings with it unexpected benefits and harms. The internet can mobilize both peaceful and violent public demonstrations in ways unimaginable not that long ago. Social media can inspire and defame folks all over the world, affect elections with both true and fake news, and mislead and inform people with a deluge of information unfathomable to both the public and legal experts in times past. 

There has always been a tension between free speech values and other important concerns that at times outweigh speech values (think perjury, bribery, and libel laws) but the exponential growth and reach of the internet compared to the forms of communication available in 1791 or 1868 is not a difference in degree but a difference in kind. 

No historical inquiry can tell us whether we should hold social media companies liable for speech on their platforms or whether the government can require them not to censor people they ban from their websites. Saying the first amendment places some limits on internet regulation is both obviously true and totally unhelpful when it comes to judges deciding real cases on the ground or legislators trying in good faith to act constitutionally when balancing free expression with other harms. Historical inquiry in this area of constitutional law simply cannot help, no matter what type of originalism bridge originalists are trying to sell.

This is a serious criticism, but I think it overstates.  True, the original meaning of the First Amendment is often not easy to identify.  But once identified, its application to the internet should not be so daunting.  Professor Segall doesn't give specific examples so it's hard to engage his post directly.  But here are a few counterexamples:

It's fairly well accepted that the First Amendment's original meaning did not allow the government to ban newspapers from publishing criticism of government policies.  If that's right, the modern application of the original meaning seems straightforward: the government also cannot ban social media platforms from publishing criticism of government policies.  The original meaning applies equally to old technologies and new technologies, as Solum, Scalia and Gorsuch say.  Similarly, it seems clear that the First Amendment's original meaning allowed the government to punish newspapers for publishing libelous content.  So similarly, the First Amendment's original meaning allows (but of course doesn't require) the government to punish social media platforms for publishing libelous content.  I don't see why Professor Segall has a problem with this.

Professor Segall says that the world of the internet is fundamentally different from the eighteenth century.  True.  He further says (or implies) that therefore we need different rules.  That may be true.  But it does not prove that the old rules cannot be applied to social media; it only means that applying the old rules to social media may yield results he doesn't like.  The originalist response is simple: if the old rules yield bad results due to changed circumstances, change the rules (using appropriate procedures, which in this case would be a constitutional amendment if one thinks the original meaning of the First Amendment is too restrictive in the internet age).

I readily concede two points: (1) the original meaning of the First Amendment is not always clear (though sometimes it is); and (2) the modern world of social media is very different from the eighteenth century and so different rules may be more appropriate.  But neither of these points shows that the emergence of the the modern social media world means the First Amendment's original meaning (to the extent we can understand it) cannot be applied.

UPDATE:  Eric Segall replies:

Thanks to Mike for posting and discussing my piece. The original meaning of the first amendment, when it comes to judicially enforceable rights, is extremely narrow. Mostly, the founders were concerned with prior restraints but no originalist I know takes that position. Moreover, newspapers may be like Facebook but then they may not be like Facebook. The reach and potential harms and benefits of world-wide social media platforms have little analogies at the Founding. The key point is judges can (and will) pick and choose what similarities and difference are relevant, and they have virtually unlimited discretion to do so.

10/12/2021

Matthew Seligman: The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes
Michael Ramsey

Matthew Seligman (Yale Law School) has posted The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes (33 pages) on SSRN.  Here is the abstract:

This Essay explains the errors in the theory advanced by John Eastman in a memorandum presented to President Donald Trump and Vice President Mike Pence which claimed that Pence had the unilateral authority to reject electoral votes when Congress convened on January 6, 2021. That Unilateral Rejection Power theory is fatally flawed in four respects. First, it rests on a misreading of the critical phrase in the Twelfth Amendment that does not follow from its text. If anything, the text indicates the Unilateral Rejection Power is incorrect. Second, it draws on an erroneous history of the Vice President’s role in the electoral counts of the 1796 and 1800 presidential elections. Third, it ignores the dispositive drafting history of the Twelfth Amendment, which definitively demonstrates that both chambers of Congress understood Article II, section 1, clause 3 to assign to Congress rather than the President of the Senate the power to count votes and decide disputes relating to that count. Congress drafted the Twelfth Amendment using precisely the same words regarding the process of counting electoral votes, thus incorporating that settled understanding. Finally, it defies reason that the Founding generation, who had just fought the Revolutionary War to overthrow a monarch to establish a representative democracy, would create a constitution that vested a single official with the legal authority to retain power for a lifetime.

This Essay offers these legal arguments in full view of the more fundamental point: that the Unilateral Rejection Power theory is a dangerous view that undercuts the basic principles of American democracy. It may seem that nothing more than that needs to be said—and that even engaging in rigorous legal argument with such a radically antidemocratic interpretation of the Constitution legitimizes a view that should simply be shunned. The tragic reality, however, is that radically antidemocratic legal views like the Unilateral Rejection Power theory have perilous influence with a powerful faction in the American political system and thus present an immense danger if not decisively rebutted. For that reason, I believe it is critical to expose that the Unilateral Rejection Power theory is not only gravely morally wrong—it is, beyond any doubt, legally wrong as well.

Sounds right to me.

But note that this is entirely an originalist argument.  Its four central authorities are (1) text; (2) early post-ratification history; (3) drafting history of the 12th Amendment; and (4) inferences about framers' intent.  These are presented as authoritative, not just of original meaning, but of modern meaning.

Doesn't this show that originalism can definitively resolve some modern debates?  Or is Professor Seligman overclaiming ("beyond any doubt"), with the Unilateral Rejection Power theory (as he calls it) instead being fairly debatable as an original matter? I'd like to hear what originalism skeptics think about this one.

10/11/2021

James Fox: The Constitution of Black Abolitionism
Michael Ramsey

James W. Fox (Stetson University - College of Law) has posted The Constitution of Black Abolitionism: Re-Framing the Second Founding (University of Pennsylvania Journal of Constitutional Law, Vol. 23, No. 2, 2021) (84 pages) on SSRN.  Here is the abstract: 

Eric Foner has observed that historians of the Thirteenth Amendment have struggled “to find ways to get the voice of African Americans into discussions of the Amendment’s original meaning, scope, and limitation.” This article is part of a project to answer Professor Foner’s challenge to recover nineteenth-century African American constitutionalism. While there are many sources for accessing the views of African American writers, speakers, and activists, this article focuses on the rich contributions of the Black Convention Movement. Despite its importance in helping to set the terms for Reconstruction, the Black Convention Movement and the Black public sphere more generally have been under-utilized and under-studied as a part of our constitutional history. The documents from the state and national conventions of African Americans that took place from 1831 through the 1860s provide evidence of how African Americans understood constitutional ideals, principles, interpretations, and text in the period of time when significant constitutional change was about to take place. As we will see, the conventions included debates and statements about a range of constitutional ideas, from the meaning of freedom in a society infused with slavery and race prejudice, to complex views about the meaning of national citizenship, to fundamental questions about the validity and morality of the constitution itself. By the 1860s, as the Civil War revealed the possibility of an America freed from slavery, African American Conventions began to present a broad vision of civil society where constitutionally protected freedom and citizenship encompassed everything from suffrage to employment to property to education. This vision, while shared intermittently by some white abolitionist allies, was both more insistent and more encompassing than those ideas of freedom most often articulated in the white public sphere. This vision, I argue, is the lost meaning of African American constitutionalism and is one well worth exploring as we consider how and whether American constitutionalism in the twenty-first century can speak to us.

Professor Fox presented an earlier version of this paper at the Originalism Works-in-Progress conference in San Diego several years ago.

(Via Larry Solum at Legal Theory Blog, where it is "Download of the Week.")

10/10/2021

New Book: Robert Steinfeld on the Origins of Judicial Review
Michael Ramsey

Recently published, by Robert J. Steinfeld (State University of New York, Buffalo - History): 'To Save the People from Themselves' - The Emergence of American Judicial Review and the Transformation of Constitutions (Cambridge University Press 2021). Here is the book description from the publisher:

In this expansive history, Robert J. Steinfeld offers a thorough re-interpretation of the origins of American judicial review and the central role it quickly came to play in the American constitutional system. Beginning with Privy Council review of American colonial legislation, the book goes on to provide detailed descriptions of the character of the first American constitutions, showing that they drew heavily on traditional Anglo/American constitutional assumptions, which treated legislatures as the primary interpreters of constitutions. Steinfeld then expertly analyses the central role lawyers and judges played in transforming these assumptions, creating the practice and doctrine of American judicial review in a half dozen state cases during the 1780s. The book concludes by showing that the ideas formulated during those years shaped critical decisions taken by the Constitutional Convention of 1787, which turned the novel practice into a permanent, if still deeply controversial, feature of the American constitutional system.

Constitutional judicial review did not start with Marbury!  It would be great if this important work would finally dispose of that old error, though I'm not optimistic.  It's too entrenched, and too useful a tool to bash originalism.

(Via Dan Ernst at Legal History Blog.)

10/09/2021

Robert Pushaw: 'Originalist' Justices and the Myth that Article III 'Cases' Always Require Adversarial Disputes
Michael Ramsey

Robert J. Pushaw (Pepperdine University - Rick J. Caruso School of Law) has posted 'Originalist' Justices and the Myth that Article III 'Cases' Always Require Adversarial Disputes (Constitutional Commentary, forthcoming) (23 pages) on SSRN.  Here is the abstract:

In 1994, I rejected the modern Supreme Court’s assertion that Article III, as originally understood, used “Cases” and “Controversies” synonymously to establish a requirement of “justiciability”: limiting federal judges to deciding disputes between adverse parties. My linguistic and historical study revealed that only “Controversies” (e.g., between citizens of different states) necessarily involved such disputes. By contrast, “Cases” were proceedings in which a party asserted his rights in a form prescribed by law, regardless of whether an adversarial contest existed. Therefore, in “Cases” the federal courts’ main role would be interpreting and applying federal law, not umpiring a dispute.

Professor Pfander’s exhaustive research has led him to agree with me on all but one point. He accepts my definition of “Cases,” but not my conclusion that the Framers chose that word primarily to signify that federal judges’ key function would be expounding the law. Instead, Pfander argues that Article III’s drafters, following English and American legal tradition, used “Cases” as an umbrella term that encompassed all “litigable interests”: Claimants could bring any recognized court action to vindicate their legal rights. Such jurisdiction could be “contentious,” as exemplified by common law suits in which a plaintiff alleged the violation of a contract, tort, or property right by an adverse defendant. However, England also incorporated elements of the European civil law system, which allowed several types of “noncontentious” jurisdiction. In such cases, a court decided a petitioner’s request for a “constitutive” order, which recognized a legal right in an area such as family law, probate, bankruptcy, naturalization, admiralty, and equity.

This review describes Professor Pfander’s three important scholarly contributions. First, his thorough research has unearthed the deep historical roots of noncontentious jurisdiction. Second, he demonstrates that the First Congress and the early Supreme Court embraced such uncontested adjudication. Third, to integrate Article III’s original meaning with modern precedent, he proposes restricting federal court access to plaintiffs who have a “litigable interest”- a valid claim of a legal right presented in a form authorized by law. If such a claim is set forth in any Article III “Controversy” or in a “Case” with adverse parties, courts may demand a showing of a “litigable interest” and also a concrete dispute (as justiciability doctrines demand). By contrast, in “Cases” of noncontentious jurisdiction, the latter requirement makes no sense.

I applaud Professor Pfander’s recommended approach as pragmatic, yet faithful to Article III’s text and history. Moreover, Professor Pfander and I have reached similar conclusions about the historical meaning of Article III even though we have radically different political views. Therefore, our work suggests that originalism can be nonpartisan, contrary to the conventional wisdom that conservatives employ this methodology as a smokescreen to impose their political agenda.

10/08/2021

Law Professors' History-Oriented Brief in the New York Guns Case
Michael Ramsey

At Volokh Conspiracy, David Kopel: Second Amendment professors brief in Supreme Court right to bear arms case.  From the introduction: 

On November 3, the U.S. Supreme Court will hear oral argument in New York State Rifle & Pistol Association v. Bruen. The case will decide whether the Second Amendment right to "bear arms" is an actual right. Or conversely, if law-abiding adults who pass a biometric background check and safety training can be denied a concealed carry permit simply because permitting officials only issue concealed carry permits when they feel that the applicant has a special need. The Supreme Court's docket page for the case shows about three dozen amicus briefs filed on each side. In the next several weeks, I will write about some of those briefs. I'll start with the amicus brief that I co-authored with George Mocsary (U. of Wyoming law school) and Joseph Greenlee (Firearms Policy Foundation).

... Our brief focuses on legal history, particularly in the Founding Era and before. In this post, I will summarize parts of the brief, and, for some parts, provide additional background information.

Part I briefly looks at the text of the Second Amendment, which protects the right to "keep" arms and the right to "bear" arms. Rather than creating a hierarchy, the text protects both rights equally. Dictionaries cited in the Heller case—Thomas Sheridan (1796), Samuel Johnson (1773), and Noah Webster (1828, the first dictionary of American English)—all defined "bear" as to "carry" or "wear."

...

Part II delves into English history. The first Englishmen to have a written guarantee of arms rights were the settlers of the Virginia Colony in 1607 and the New England Colony in 1620. Their royal charters gave them and all succeeding immigrants the perpetual right to import from the King's dominion's "the Goods, Chattels, Armour, Munition, and Furniture, needful to be used by them, for their said Apparel, Food, Defence or otherwise."

Back in England, there was no written right to arms until the 1689 English Bill of Rights: "That the subjects which are Protestants may have arms for their defense suitable to their conditions, and as allowed by law." Yet the same Parliament that enacted the English Bill of Rights declared the right to arms, and other provisions, to be "true, ancient and indubitable rights." Like Americans such as John Adams, the English believed the right of self-defense and the right to arms to be based in natural law. ... [extensive historical discussion follows].

The New York case is likely to be the most significant originalist decision of the term.  For a historical counterpoint, see here (from Saul Cornell).

10/07/2021

New Book by Gordon Wood: "Power and Liberty"
Michael Ramsey

Recently published, by Gordon Wood: Power and Liberty: Constitutionalism in the American Revolution (Oxford University Press 2021).  Here is the book description from the publisher:

New York Times bestseller and Pulitzer Prize-winning author Gordon S. Wood elucidates the debates over the founding documents of the United States.

The half century extending from the imperial crisis between Britain and its colonies in the 1760s to the early decades of the new republic of the United States was the greatest and most creative era of constitutionalism in American history, and perhaps in the world. During these decades, Americans explored and debated all aspects of politics and constitutionalism--the nature of power, liberty, representation, rights, the division of authority between different spheres of government, sovereignty, judicial authority, and written constitutions. The results of these issues produced institutions that have lasted for over two centuries.

In this new book, eminent historian Gordon S. Wood distills a lifetime of work on constitutional innovations during the Revolutionary era. In concise form, he illuminates critical events in the nation's founding, ranging from the imperial debate that led to the Declaration of Independence to the revolutionary state constitution making in 1776 and the creation of the Federal Constitution in 1787. Among other topics, he discusses slavery and constitutionalism, the emergence of the judiciary as one of the major tripartite institutions of government, the demarcation between public and private, and the formation of states' rights.

Here is an immensely readable synthesis of the key era in the making of the history of the United States, presenting timely insights on the Constitution and the nation's foundational legal and political documents.

(Via Dan Ernst at Legal History Blog.)

Update from Mike Rappaport:  I'm reading the book right now, and it is quite good.  It is brief enough to be a comfortable read but still hits the essential points.  

 

10/06/2021

Gary Lawson & Guy Seidman: Are People in Federal Territories Part of “We the People of the United States”?
Michael Ramsey

Gary Lawson (Boston University School of Law) and Guy I. Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law) have posted Are People in Federal Territories Part of “We the People of the United States”? (9 Texas A & M L. Rev. __ (forthcoming 2022) (48 pages) on SSRN.  Here is the abstract:

In 1820, a unanimous Supreme Court proclaimed: “The United States is the name given to our great republic, which is composed of states and territories.” While that key point is simple, and perhaps even obvious, the constitutional implications of such a construction of “the United States” as including federal territories are potentially far reaching. In particular, the Constitution’s Preamble announces that the Constitution is authored by “We the People of the United States” and that the document is designed to “secure the Blessings of Liberty” to the author and its “Posterity.” If inhabitants of federal territory are among “We the People of the United States,” then federal actors owe them (and their “Posterity”) the same fiduciary duties owed to people in the States. There is no definitive answer as a matter of original meaning as to the scope of “We the People of the United States,” but the presumptive meaning of “the United States” in 1788 included federal territory, so the presumptive meaning of “the People of the United States” would similarly include people in federal territory. While there are strong textual and contextual arguments for excluding territorial inhabitants from “We the People,” there are also countervailing textual and contextual arguments for their inclusion. In the end, the answer may depend on something beyond the reach of interpretative theory: How strong is the presumption in favor of inclusion that can be drawn from pre-1788 understandings and practices? If territorial inhabitants are indeed among “We the People of the United States,” then federal action towards the territories must conform to fiduciary norms, including the key norm of impartiality with respect to multiple beneficiaries, which would require very strong reasons for disfavoring territorial inhabitants in comparison to state inhabitants.

I agree that people in the territories are part of "We the People of the United States" but I'm not yet persuaded that that conclusion has the implications the authors think it does.

10/05/2021

Ed Whelan versus Hadley Arkes on Originalism (Round 2)
Michael Ramsey

Continuing this discussion, Ed Whelan and Hadley Arkes have a further exchange at NRO on originalism and morality.

Hadley Arkes: A Response to Ed Whelan.  From the core of the argument:

The curious and unsettling thing here is that Ed Whelan has so evidently absorbed the moral skepticism that has fueled the conservative justices, the ones who preferred to invoke history and steer around the moral substance at the heart of these cases. If Whelan is to be taken literally here, he regards claims to moral reasoning as suspicious on their face precisely because he thinks they involve no more than an appeal to personal and subjective feelings. And so he says:

• that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution.

•  [Arkes] thinks it proper for justices to impose their own moral readings on the Constitution.

In other words, moral judgments are merely expressions of personal feelings with no evident claim to truth. For if there were such truths, the judges would not be merely relying on “their own moral preferences” or “their own moral readings.” James Wilson and other Founders took as the first principle of moral and legal judgment: that it makes no sense to cast moral judgments of right and wrong on people who cannot control their own acts. And so we say that “we don’t hold people blameworthy or responsible for acts they were powerless to affect.” That anchoring axiom threads through many parts of our law, from the insanity defense to the case against racial discrimination. When a judge invokes this anchoring truth, would Whelan really say that he is indulging merely his “own preferences” or his “own readings”?

Ed Whelan: A Reply to Hadley Arkes on Originalism and Roe.  On the main point of disagreement:

Arkes’s main claim is that my position that Supreme Court justices should not indulge their own moral preferences in interpreting the Constitution means that I believe that “moral judgments are merely expressions of personal feelings with no evident claim to truth,” that I “deny[] that there are any moral truths for reason to discern.” His claim is, to borrow a phrase from Justice Scalia, pure applesauce.

My belief that the justices should not indulge their moral convictions in interpreting constitutional provisions does not turn at all on a “moral skepticism” that Arkes wrongly posits that I have “so evidently absorbed.” It turns instead on my belief that the role of a federal judge is distinct from that of a legislator. I believe firmly that there are “moral truths for reason to discern.” What I am skeptical of is Arkes’s ill-defined suggestion that such discernment properly plays a role in constitutional interpretation.

To illustrate the point: Either (A) the death penalty is never morally permissible, or (B) the death penalty is sometimes morally permissible. These are two mutually exclusive propositions, and one of them is certainly correct. I have formed my own belief on the matter. But I don’t think it’s consistent with originalist methodology for Supreme Court justices on either side of the moral question to rely on their moral convictions in deciding whether the death penalty violates the Constitution.

To restate my comment on the initial Whelan/Arkes exchange, I'm having difficulty understanding where the moral vision of the Constitution's framers fits into Professor Arkes' argument.  Suppose we now hold a "first principle of moral and legal judgment" -- as a matter of our own moral reasoning -- that was not shared by the framers.  In Arkes' approach, should that principle play a role in constitutional interpretation or not?  I find that he is not clear on his answer, though I suspect it to be the former.  If so, that's a plausible approach, but it's not originalism.

10/04/2021

New Book: "Advanced Introduction to Legal Reasoning" by Larry Alexander and Emily Sherwin
Michael Ramsey

Recently published: Advanced Introduction to Legal Reasoning, by Larry Alexander (University of San Diego Law School) and Emily Sherwin (Cornell Law School) (Edward Elgar Publishing 2021).  Here is the book description from the publisher: 

This insightful and highly readable Advanced Introduction provides a succinct, yet comprehensive, overview of legal reasoning, covering both reasoning from canonical texts and legal decision-making in the absence of rules. Overall, it argues that there are only two methods by which judges decide legal disputes: deductive reasoning from rules and unconstrained moral, practical, and empirical reasoning.

I mostly agree with the central premise, as I think do most originalists.  A fair number of nonoriginalist judges and scholars claim there is a third way that is neither based on the original meaning of rules nor on "moral, practical, and empirical reasoning" (what I would call whatever the interpreter thinks best).    I think the third way is mostly an illusion.

My slight disagreement is this:  I think there can be law based on customary practices.  That is a law that is neither based on canonical texts nor "moral, practical, and empirical reasoning."  Customary international law is an example, as are some forms of commercial law.

But I describe this as a "slight disagreement" because I think the scope of rules based on custom is necessarily very narrow.  In particular, I think custom has very limited ability to generate rules to address new situations without collapsing into moral, practical, and empirical reasoning.  For an extended discussion of this view, see my article The Limits of Custom in Constitutional and International Law.

10/03/2021

Robert Leider: Deciphering the "Armed Forces of the United States"
Michael Ramsey

Robert Leider (George Mason University - Antonin Scalia Law School, Faculty) has posed Deciphering the "Armed Forces of the United States": A Cy Pres Reconstruction of the Modern Constitutional Armies and Militia (59 pages) on SSRN.  Here is the abstract: 

The Constitution provides for two kinds of military land forces—armies and militia. Commentators and judges generally differentiate the armies from the militia based upon federalism. They consider the constitutional “armies” to be the federal land forces, and the constitutional “militia” to be state land forces—essentially state armies. And the general consensus is that the militia has largely disappeared as an institution because of twentieth-century reforms that brought state National Guards under the control of the federal Armed Forces.

This Article argues that the general consensus is wrong. At the Framing, the proper distinction between “armies” and “militia” had to do with professionalism, not federalism. Armies comprised soldiers for whom military service was their principal occupation, while the militia comprised individuals who were subject to military service only on a part-time or emergency basis. Put differently, the armies were the regular forces, while the militia was the citizen army. From these definitions, this article then provides a better translation of the Framing-era military system to the structure of the modern Armed Forces.

10/02/2021

David Schwartz: Reconsidering the Constitution's Preamble
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted Reconsidering the Constitution's Preamble: the Words that Made Us U.S. (37 Constitutional Commentary (forthcoming 2022)) on SSRN.  Here is the abstract:

The Preamble to the U.S. Constitution is wrongly dismissed by conventional doctrine as a purely symbolic or stylistic flourish with no operative legal significance. But the drafting history of the Preamble, observable by comparing the preambles in the Articles of Confederation, the Committee of Detail draft of the Constitution, and the Committee of Style's final version, demonstrate that the Framers considered the Preamble to be substantively meaningful. Just what the Preamble means remains ambiguous: it might be viewed as a rejection of compact theory, as an interpretive guide to the powers granted in the body of the Constitution, or as a source of implied powers. But the view that reduces the Preamble to a legally inoperative flourish has no basis as a matter of text or history.

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

Note: this paper is related to, but not to be confused with, another recent paper by Professor Schwartz on the Committee of Style, described here.

10/01/2021

John McGinnis on Eviction Moratoriums and the Contracts Clause
Michael Ramsey

At Law & Liberty, John McGinnis: Do Eviction Moratoriums Violate the Contract Clause?  From the introduction: 

The Supreme Court recently held that the Biden Administration’s extension of a moratorium on evictions to combat the pandemic was beyond the limited authority of its Center for Disease Control and Prevention. But twelve states have used their own police power to keep eviction moratoriums in place. These moratoriums are not permitted under the original meaning of the Constitution. They also represent an immoral imposition of social costs on a small class of people—owners who rent out their property. And they will harm people of modest means in the future by discouraging investment in affordable rental property. The continuing popularity of such moratoriums over eighteen months after the appearance of Covid-19 shows how far we have traveled from a key decision of our Founders—to put vested rights, like contractual obligations, beyond the power of government to destroy.

The Contract Clause

The Constitution has a specific provision that prevents states (or their localities operating under state authority) from interfering with existing contracts to the benefit of one party at the expense of the other. It expressly provides that no state may pass a law “impairing the obligation of contracts.” It is hard to argue that an eviction moratorium does not work such an impairment.

Consider the sweeping moratorium passed by the city of Los Angeles, the second-biggest metropolis in the United States. First, the moratorium declares that for the period of the Covid emergency (an emergency that is still ongoing, according to the city) and for twelve months afterwards, the tenant cannot be evicted from the rental property when he cannot pay rent due if he suffered any loss of income related in any way to Covid. The tenant also cannot be evicted for this period for other “non-fault reasons,” such as the property owner’s wanting to occupy the property himself. The law also bars eviction even if the tenant is joined by other occupants or pets that are expressly forbidden by the lease.  

Under any reasonable definition of impairment, the Los Angeles eviction moratorium is a substantial one. While the rental obligation is deferred rather than eliminated, the usual requirement that rent be paid monthly reflects the recognition that deferred payments are less likely ever to be made. Moreover, the requirement that only the tenant and others designated in the lease occupy the property is designed to safeguard against the value of the owner’s property being substantially diminished by excessive wear and tear.  

Nevertheless, the Ninth Circuit summarily dismissed a Contract Clause challenge to the moratorium. And it was right to do so because the controlling precedent of the Supreme Court has gutted the Contract Clause. In Home Building and Loan Association v. Blaisdell, a case decided during the Depression, the Court faced not an eviction but a mortgage moratorium. The statute provided that a mortgagor who was in default could apply to state court for an extension for the mortgage period so long as he paid a reasonable rent for the period. The statute thus took away the essential bargained-for right of foreclosure.  

Although the Court had in the nineteenth century invalidated similar statutes that had diminished core contractual rights, the Blaisdell Court upheld the statute in an opinion notable for its repudiation of originalism. The Court said the statute must be considered “in light of our whole experience and not merely in light of what was said a hundred years ago.” Thus, because of “a growing recognition of public needs . . . the reservation of a reasonable exercise of the protective power of the States is read into all statutes.” Ultimately, the Court reasoned that the statute should be upheld because of the difficult economic conditions.  

In one of the more powerful dissents ever written, Justice George Sutherland observed that the very arguments for state power that the majority made were also offered by the opponents of the Contract Clause at the Convention and were rejected by its adoption. The Clause had been passed to protect against debtor relief legislation adopted when economic conditions were perceived to be harsh—precisely the conditions which the Court was using to permit impairment. As Justice Sutherland dryly concluded, “With due regard for logical thinking, it legitimately cannot be urged that the conditions that produced the rule may now be invoked to destroy it.”

Agreed.  And I hate agreeing with Sutherland, who was not a very good originalist in some other respects.

(Thanks to Michael Rosman [Center for Individual Rights] for the pointer.)

09/30/2021

Hadley Arkes on Orignialism and Natural Law [Updated]
Michael Ramsey

In the Wall Street Journal, Hadley Arkes: ‘Originalist’ Judges Lose Sight of Truths That Precede Law - Even if the Constitution is silent on abortion, nature and science have a lot to say about it.  From the introduction:

The Supreme Court opens its new term Monday with six nominal conservatives appointed by Republican presidents. But conservatives have been shaken in their confidence that those six will yield majorities on issues that deeply matter. That declining confidence comes along with a serious argument within the conservative family over the nature of “conservative jurisprudence.” Conservatives are united in taking as our coordinates the original meaning of the text of the Constitution. But some of us have argued for “a better originalism,” as opposed what we call the “truncated originalism” that has predominated. We see the latter as detached from the understanding that the American Founders, the true originalists, had of the moral ground of the Constitution and laws they were shaping.

And from later on:

In Roe v. Wade (1973), the lawyers defending the abortion laws of Texas drew on the most updated data from embryology, woven with principled reasoning, to show that the offspring in the womb had been nothing other than human from its first moments, that it was never merely a part of the mother. These lawyers acted, we might say, “naturally”: they sought to show why the laws of Texas were “justified” in casting their protections and displacing the personal freedom of a woman to destroy that small human being who was uniquely vulnerable to her care—and her power.

But none of that rich material made its way into the dissenting opinions by Justices Byron White and William Rehnquist, who were content to rely on the point that abortion was nowhere mentioned in the Constitution. If that is all the court can say—if there is no recognition of a child in the womb as a human life—then why would any state be justified in barring a pregnant woman from being rid of it? And why should she lose that freedom if she travels to another state? But if that offspring is never anything less than a human being, why should the court not engage the power it has used in the past when the protections of the law were withdrawn from a class of human beings and citizens within the separate states? A court that can’t settle its judgment here is simply giving us another chapter in a continuing story of incoherence.

I think Professor Arkes might be saying one of three things here (and elsewhere in pursuing this debate), but I'm not sure which:

(1) The framers had background understandings of morality and natural law that can help give meaning to vague or ambiguous words and phrases in the Constitution.  If that's the claim, I think it's just standard originalism and shouldn't provoke any methodological debate (although of course particular applications of it might be debated).

(2) The framers had background understandings of morality and natural law that, while not directly incorporated into the Constitution, should still be available for judges to draw on in resolving constitutional cases.  Here I think most originalists would disagree.  I can see how this proposition might connect to the older idea of framers' intent, but the Scalia-driven shift to focus on original meaning of the text I think precludes it.  Things that the Framers believed but aren't in the Constitution aren't part of the Constitution's original meaning and so aren't binding (and can't be made binding by judges) on later generations that might want to change them.  The law of the Constitution arises from the words and phrases of the enacted Constitution, not from the framers' moral vision untethered to the Constitution.  

(3) There are principles of morality and natural law that are simply true ("truths that precede law"), irrespective of what the framers thought about them.  I don't see how this is different from a morality-driven version of nonoriginalism. It's not a competing version of originalism; it's just not originalism (as Adrian Vermeule acknowledges).

UPDATE: Ed Whelan responds at NRO: Hadley Arkes’s Straw-Man Argument for a ‘Better Originalism’ on Roe. Consistent with my thoughts, he comments: 

I’m unclear on what role Arkes believes the “moral ground of the Constitution” should have in originalist interpretation of the Constitution. The dominant originalist view, as I understand it, is that separation of powers and federalism are part of that “moral ground,” and that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution. Constitutional provisions, of course, might embed moral understandings, and when they do, justices should interpret those provisions consistent with those understandings. If that is all that Arkes means, then we are on the same page.

From my broader understanding of Arkes’s work, I fear, though, that he thinks it proper for justices to impose their own moral readings on the Constitution. There are suggestions to that effect in his op-ed. He, for example, faults Justice Scalia for “steer[ing] around the questions of moral substance at the heart” of Obergefell v. Hodges. Does Arkes believe that the case against judicial invention of a constitutional right to same-sex marriage depends in any way on making a moral argument against same-sex relationships?

Agreed.  You have to see as two different questions (1) what does the Constitution require and (2) what do justice and morality require -- or you aren't an originalist.

09/29/2021

Michael Dorf on Conservative Justices and Originalism
Michael Ramsey

At Dorf on Law, Michael Dorf: What is Justice Breyer Doing?  The post begins by discussing Justice Breyer's recent claims that the Court doesn't act politically.  Toward the end, it shifts to discussing similar claims by Justices Thomas and Barrett:

... [T]he actual voting pattern we see [at the Supreme Court] is also a far cry from what Justices Barrett, Thomas, and Breyer would have us believe. Despite cross-ideological votes in low-stakes cases and occasional surprises in high-stakes cases, ideology is a very reliable predictor of each Justice's overall voting pattern.

What's the explanation for that pattern? Justices Barrett, Thomas, and Breyer acknowledge that Justices have judicial ideologies, but, they say, that's not the same thing as a political ideology. If the Justices divide along what look like party lines, that's just because Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists.

That claim is mostly false. Yes, there are some cases in which Justices can be seen voting their methodological--or at least their legal--druthers rather than on purely partisan or policy grounds. For example, in Gonzales v. Raich, three conservatives voted for a respondent claiming that the application of federal criminal law to state-legal medical marijuana was unconstitutional. And all of the Court's liberals allowed the prosecution. Presumably legal/constitutional views about federal power, not policy views about marijuana, explain those votes. (The two Justices who could be said to have voted their policy views were Scalia and Kennedy, although it is possible to defend those votes as not simply result-driven.)

But note that Raich was not a case of any Justices reaching distasteful policy results on the grounds of their methodological commitments. It's possible, perhaps, to characterize Justice Gorsuch's highly textualist opinion in Bostock v. Clayton County that way, I acknowledge, ... [but] nothing about Bostock contradicts the supposition that all the Justices (with the possible exception of Kavanaugh) voted their policy preferences, with Justice Gorsuch then writing the opinion in a textualist style.

In any event, I'm willing to stipulate that occasionally Justices vote their methodological druthers over their ideological or partisan druthers. However, the overall voting pattern we see--in which ideology is the best predictor of a Justice's vote--and the malleability of the various methodologies, very strongly suggest that the Justices are mostly voting their values and ideological druthers, not their methodological druthers. Even if they're not partisan hacks, they're hardly apolitical.

Perhaps, but I don't think this analysis shows that Justices Barrett et al.'s claim is "mostly false."  Let's stipulate that, as Professor Dorf says, "ideology [meaning political affiliation] is the best predictor of a Justice's vote." That doesn't mean that political affiliation is causing the votes, only that political affiliation is correlated with the votes.  Let's suppose it happens (as I think is probably often the case) that in the leading constitutional disputes of the time (abortion, sexual orientation rights, death penalty, religious freedom, election law, etc.) the stronger originalist arguments favor the conservative political outcome.  That might just be coincidence, or it might be that originalism tends to favor more traditional rather than more innovative legal results.  In either case, if it's true that "Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists," then one would expect to see exactly the pattern Professor Dorf describes.

To make his claim work, Professor Dorf would need to show that conservative Justices consistently disregard the stronger originalist arguments to reach conservative outcomes.  Maybe that's true (Eric Segall thinks it is), but Professor Dorf hasn't shown it here, and I'm skeptical that it can be done.

Of course, a question remains why it's true that "Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists,"  One possibility is that originalism and textualism on balance (though assuredly not in every case) tend to lead to conservative results.  There may be a general tendency (even an unconscious one) to favor a methodology that's generally friendly to one's political affiliation.  But that's very different from saying that political affiliation determines votes in particular cases.

09/28/2021

David Schwartz: The Committee of Style and the Federalist Constitution
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) has posted The Committee of Style and the Federalist Constitution (70 Buffalo Law Review (forthcoming 2022)) (52 pages) on SSRN.  Here is the abstract: 

The conventional interpretation of the Constitution assumes that the Committee of Style, which created the final draft of the Constitution, lacked authority to engage with substance; therefore, any arguably substantive changes it did make should be disregarded in favor of earlier draft language found in the Constitutional Convention records. This "Style doctrine" has been embraced by the Supreme Court and several leading constitutional scholars. This article argues that the Style doctrine is historically unfounded and obscures the Constitution's original meaning. The Committee of Style was not prohibited from proposing substantive changes. In any case, most of the revisions proposed by the Committee of Style clarified or reinforced Federalist positions rather than proposing substantive changes. Ultimately, the Style doctrine is an artifact of post-ratification developments tending to disregard elements of the more nationalistic constitutional vision of the Federalist Framers.

I agree, at least to the extent of agreeing that the "Style doctrine" is misplaced.  Just because the Committee of Style wasn't supposed to change the substance doesn't mean it didn't.  But I also think if you are worrying a lot about what Committee wrote what, you are getting too lost in the details of the Convention (details that weren't known to most people a the time, and which are probably ambiguous at best in what they suggest about meaning).

09/27/2021

Noah Feldman on Justice Gorsuch and Justice Scalia
Michael Ramsey

At Bloomberg, Noah Feldman (Harvard): Neil Gorsuch Is Channeling the Ghost of Scalia.

Neil Gorsuch has big ambitions.

Every Supreme Court justice wants to do good work, write good opinions and influence the trajectory of American law. Justice Gorsuch wants more: intellectual leadership of the conservative legal movement. That would make him the heir to the late Justice Antonin Scalia, whom he replaced in 2017 after the Senate refused to vote on President Barack Obama’s nomination of Judge Merrick Garland.

Gorsuch’s aspiration to intellectual leadership fairly bursts from his votes and opinions and seems to have formed early in his career. He might accomplish it if emerging splits within the close-knit family of conservative legal thinkers break his way.

In practice, this means Gorsuch decides cases a little differently from his colleagues, including the two others appointed by former President Donald Trump, Justices Brett Kavanaugh and Amy Coney Barrett. In every case, no matter how small or large, he takes pains to shape a consistent judicial philosophy that defines the conservative position.

The results so far have been noteworthy. Gorsuch has delivered some extremely conservative opinions on religious liberty and other issues. But he also authored the landmark opinion Bostock v. Clayton County, which conferred workplace anti-discrimination rights on gay and transgender people and was lauded by liberals and condemned by many conservatives.

(Via How Appealing).

UPDATE:  Josh Blackman has some harsh comments at Volokh Conspiracy: Noah Feldman Indulges in Gorsuch and Barrett Fan Fiction -- Feldman imagines some hypothetical battle between Gorsuch's consistency and Barrett's doctrine.

09/26/2021

Ethan Leib: Are the Federal Rules of Evidence Unconstitutional?
Michael Ramsey

Ethan J. Leib (Fordham University School of Law) has posted Are the Federal Rules of Evidence Unconstitutional? (American University Law Review, Vol. 71, forthcoming 2022) (51 pages) on SSRN.  Here is the abstract:

This paper explores for the first time how the Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking – for Civil Procedure, for Criminal Procedure, and for Appellate Procedure – the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation doctrine because it allows statutes of the United States to be effectively rewritten by the Supreme Court outside the constraints of bicameralism and presentment, requirements of Article I, Section 7. Especially in light of the Court’s signals in recent terms that it may be seeking to revivify the non-delegation doctrine soon, focusing on the FRE’s formal deficiencies is urgent. Yet functionalists about the separation of powers also need to condemn our current FRE rulemaking process. Functionally, the FRE rulemaking system is constitutionally suspect because it permits the Supreme Court – outside of its Article III authority to hear “cases and controversies” – to repeal and amend substantive statutes unilaterally, a power that can threaten bedrock commitments to our federalism and to our constitutional rights to the jury. The decisions about how and when to displace state law in favor of federal law and about how and when to grant powers to juries over judges cannot be vested in the Judicial Branch alone without the structural restraints of an Article III “case or controversy.” The paper concludes by offering some ways to fix our evidence law and to put it on firmer footing, permitting better power-sharing and dialogue between two branches of government – Congress and the Supreme Court – that both have reasonable claims to some authority in the area.

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

09/25/2021

Craig Green: A Revolutionary History of American Statehood
Michael Ramsey

Craig Green (Temple University - James E. Beasley School of Law) has posted United/States: A Revolutionary History of American Statehood (Michigan Law Review, Vol. 119, No. 1, 2020) on SSRN.  Here is the abstract: 

Where did states come from? Almost everyone thinks that states descended immediately, originally, and directly from British colonies, while only afterward joining together as the United States. As a matter of legal history, that is incorrect. States and the United States were created by revolutionary independence, and they developed simultaneously in that context as improvised entities that were profoundly interdependent and mutually constitutive, rather than separate or sequential.

“States-first” histories have provided foundational support for past and present arguments favoring states’ rights and state sovereignty. This Article gathers preconstitutional evidence about state constitutions, American independence, and territorial boundaries to challenge that historical premise. The Article also chronicles how states-first histories became a dominant cultural narrative, emerging from factually misleading political debates during the Constitution’s ratification.

Accurate history matters. Dispelling myths about American statehood can change how modern lawyers think about federalism and constitutional law. This Article’s research weakens current support for “New Federalism” jurisprudence, associates states-rights arguments with periods of conspicuous racism, and exposes statehood’s functionality as an issue for political actors instead of constitutional adjudication. Flawed histories of statehood have been used for many doctrinal, political, and institutional purposes in the past. This Article hopes that modern readers might find their own use for accurate histories of statehood in the future.

09/24/2021

Saul Cornell: The Right to Regulate Arms in the Era of the Fourteenth Amendment
Michael Ramsey

Recent published in the U.C. Davis Law Review Online: The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America (55 U.C. Davis L. Rev. Online 65 (2021)), by Saul Cornell (Fordham).  From the introduction: 

Scholarship on the history of firearms regulation during Reconstruction has lagged far behind studies of early American gun regulation. This essay collects and analyzes evidence about Reconstruction-era firearms regulation and summarizes these findings. Reconstruction ushered in one of the most intense periods of gun regulation in American history. The Republicans who framed and enacted the Fourteenth Amendment were eager to protect the Second Amendment rights of recently freed persons, including an individual right of self-defense. But Republicans were equally committed to enacting strong racially neutral gun regulations, aimed at reducing interpersonal violence and preserving the peace, a task vital to the success of Reconstruction. Scores of new regulations were enacted and one of the main goals of these laws was to limit the public carry of weapons. These laws were not driven by racial animus, as some gun rights advocates have erroneously claimed, but sought to protect vulnerable populations in the South, including former slaves and Republicans eager to further the aims of Reconstruction.

...

Founding era fears about the federal government’s threat to state militias ... had largely abated by the time of the Civil War. One of the most important consequences of this shift was the adoption of state arms bearing provisions that were more self-consciously individualistic. What has not drawn much scholarly or judicial notice, though, is the profound change in the structure and language that accompanied the rise of a more individualistic formulation of the right to bear arms after the Civil War.

The inclusion of more individualistic language was only part of the change in the language of these texts. States also included provisions expressly affirming the right to regulate arms. In fact, state after state cast aside the eighteenth century’s dominant formulation of armsbearing, dropping references to the dangers of standing armies and the necessity of civilian control of the military. In place of these ancient fears of tyrannical Stuart monarchs and standing armies, a new fear permeated these texts: gun violence. To borrow a key concept from the common law: a new mischief had emerged, one that required a different remedy. The constitutional danger nineteenth century America faced, one that intensified after the Civil War, was not “lobster-back” redcoats facing off against minutemen, but interpersonal gun violence and the collective terrorist violence perpetuated by groups such as the Ku Klux Klan. In response to these new threats to the peace and safety of the republic, a novel formulation of the right to bear arms emerged in state constitutional law — a new model that forged an indissoluble bond between the right to regulate arms and the right to bear arms.

Powered by this new constitutional framework, uniting arms bearing and regulation into a single principle, states and localities took up the challenge of framing policies that both protected the right to bear arms and the public’s right to enjoy the peace by enacting dozens of new laws regulating nearly every aspect of the right to keep and bear arms.19 Laws regulating the sale of arms; prohibitions on possessing arms in churches, schools, and polling places; bans on concealed carry; general bans on public carry; and new discretionary permit schemes that limited the right of armed travel to situations in which citizens had a good cause to fear attack were among the most important laws adopted during this period.

09/23/2021

Bethany Berger: Eliding Original Understanding in Cedar Point Nursery v. Hassid
Michael Ramsey

Bethany Berger (University of Connecticut School of Law) has posted Eliding Original Understanding in Cedar Point Nursery v. Hassid (Yale Journal of Law and the Humanities, forthcoming) (26 pages) on SSRN.  Here is the abstract:

Cedar Point Nursery v. Hassid is a triumph of the conservative majority of the Supreme Court. In holding that temporary entries to land are takings without regard to duration, impact, or the public interest, the Court fulfilled decades-long ambitions of anti-regulatory advocates of private property. Progressive and conservative scholars agree that the decision runs roughshod over precedent. This essay focuses on a less obvious aspect of Cedar Point: its flagrant departure from original understanding.

American law at the time of the founding recognized a robust right to enter private property. Trespass law did not even reach entries that did not cause economic damage, and statutes often placed additional limits on suits for unauthorized entry. Starting with Massachusetts Bay’s 1641 Liberties Common and continuing well into the nineteenth century, colonies and states also created numerous formal entitlements to enter. Such rights were enshrined in the constitution of Vermont—the first American constitution to include a takings provision—and the Anti-Federalist report that led to the Bill of Rights. With or without constitutional guarantees, courts dismissed challenges to these entries as frivolous, contrary to American culture, even rejections of what made the new nation a land of liberty.

Although originalism is a watchword of the Court’s conservative majority, the Court rejected this legal tradition in Cedar Point. The new per se rule does include exceptions that, if read broadly, may limit this departure from original understanding. Time will tell whether the Justices take this second opportunity to make good on their originalist commitments.

09/22/2021

Top 20 [sic] Most-Cited Originalism Scholars, 2016-2020 [Corrected]
Michael Ramsey

Inspired by Gregory Sisk (St. Thomas) and Brian Leiter (Chicago), who have been ranking law faculties and individual professors by citation counts, here is a ranking of the top originalist-oriented scholars by citations, for the period 2016-2020.  (It uses Professor Sisk's methodology but the calculations are mine). The number represents the total number of articles in the Westlaw "law reviews and journals" database and published between 2016 and 2020 (inclusive) that cited any of the person's writing.

  1. Jack Balkin (Yale), 1655
  2. Akhil Amar (Yale), 1449
  3. Michael McConnell (Stanford), 1043
  4. Randy Barnett (Georgetown), 977
  5. Lawrence Solum (Virginia), 869
  6. Steven Calabresi (Northwestern), 781
  7. William Baude (Chicago), 761
  8. Gary Lawson (Boston University), 727
  9. Saikrishna Prakash (Virginia), 648
  10. John McGinnis (Northwestern), 641
  11. Ilya Somin (George Mason), 598
  12. Keith Whittington (Princeton - Political Science), 586
  13. Caleb Nelson (Virginia), 551
  14. Michael Paulsen (St. Thomas), 526
  15. Philip Hamburger (Columbia), 518
  16. Josh Blackman (South Texas), 447
  17. Michael Rappaport (San Diego), 396
  18. Stephen Sachs (Harvard), 349
  19. Michael Ramsey (San Diego), 311
  20. John  Harrison (Virginia), 305
  21. (tie) Bradford Clark (George Washington), 229; Kurt Lash (Richmond), 229

Likely I've forgotten some people so this is only a preliminary list.  Please send corrections. 

Further notes: there is some some grey area concerning who should be called an "originalist-oriented scholar"; I've generally gone with self-identification. Also, I have not included professors (like my colleague Larry Alexander) who self-identify as originalists but write mostly in areas unrelated to originalism.

CORRECTION #1:  Jack Balkin has also published as J.M. Balkin.  The initial post did not take that into account.  His count has been adjusted upward by 145 cites.

CORRECTION #2:  The initial post omitted Ilya Somin (George Mason) because I was not sure he considered himself an originalist.  However, he confirms that he is, at minimum, an "originalist-oriented scholar."  So he has been added (at #11).  And now there are 22 scholars in the top 20.

Does Originalism Alone Undermine Roe v. Wade?
Chris Green

A number of observers, notably long-time nonoriginalist Adrian Vermeule, have expressed some puzzlement (or perhaps delight at the opportunity for a reductio ad absurdum) at the idea that Jack Balkin might be an originalist despite arguing that the original meaning of the Fourteenth Amendment is consistent with the result in Roe v. Wade. However, it seems unremarkable to me that the original meaning of the Fourteenth Amendment, when taken in tandem with sufficiently heroic factual assumptions, might support Roe v. Wade or Obergefell v. Hodges.

It is widely recognized that the Fourteenth Amendment contains some sort of provision--disagreement persists about which provision--that broadly and abstractly requires equality in civil rights among similarly-situated American citizens (and perhaps among non-citizens too). I think the provision is the Privileges or Immunities Clause; others think it is the Equal Protection or Due Process Clause, but just about all observers of the original meaning of the Fourteenth Amendment think that somewhere, the Fourteenth Amendment requires equality.

The key question for the result in Obergefell isn't the issue of original meaning so much as whether there is an adequate judicially-cognizable basis for thinking that same-sex couples are similarly situated to opposite-sex couples with respect to the purposes of marriage. Likewise, the most important question in Roe, Casey, and Dobbs isn't the meaning expressed by the text of the Fourteenth Amendment in its original context so much as whether there is an adequate judicially-cognizable basis for thinking that pregnant women are similarly-situated to those who are not pregnant, either (a) because the fetus is not sufficiently important to be protected, i.e., Michael Tooley and Mary Anne Warren's fetal-personhood-denying defenses of abortion are right, or (b) because a pregnant woman's interest in bodily integrity overrides any rights the fetus might have in being protected, or interests the state might have in protecting them, i.e., Judith Thomson's kidnapped-violinist defense of abortion is right.  These latter issues, if resolved in favor of abortion rights, can in tandem with the Fourteenth Amendment's original meaning easily produce the basic result in Roe.

Of course, Roe itself nullifies any Thomson-style argument by saying that fetal personhood if established obviously undermines abortion rights, and expressly declares itself agnostic on the Tooley-Warren-style argument against fetal personhood itself. These add up to agnosticism on the key issues and a mandate for deference to states who disagree with both arguments. Further, I have myself expressed extreme skepticism (see here, here, and here) about the factual predicates necessary for either Obergefell or Roe, especially the idea that those factual predicates could be rendered "clear," as I think judicial review requires. But those who disagree on that latter point can still agree with me about the Fourteenth Amendment's textually-expressed original meaning as such. Put another way, opponents of Roe don't need just originalism in order to win; they also need at least a measure of skepticism (perhaps Roe-supplied skepticism) about the substantive case for abortion rights.

Originalism and Citizens United (Again)
Michael Ramsey

Dean Erwin Chemerinsky (Berkeley) has an op-ed in the L.A. Times calling the Supreme Court Justices "partisan hacks."  At Volokh Conspiracy, Josh Blackman and Jonathan Adler have some sharp responses.  I want to focus on a relatively small part of the op-ed that repeats and amplifies a mistaken talking point.  Dean Chemerinsky writes: 

In 2010, in Citizens United vs. Federal Election Commission, the court ruled 5 to 4 that corporations can spend unlimited amounts to get candidates elected or defeated.

Business interests, which overwhelmingly favor Republican candidates in their campaign expenditures, outspend unions by more than 15 to 1. There is no plausible argument that the original meaning of the 1st Amendment included a right of corporations to spend unlimited amounts in election campaigns. Neither political expenditures nor corporations, as we know them today, even existed at the founding of this country.

To be clear, the issue in Citizens United was whether corporations (and labor unions and non-profit associations like the ACLU) could spend money to express their opinions about candidates.  I think there most certainly is a "plausible argument" that the original meaning of the First Amendment included such a right.

(1) "Political expenditures" in the sense of spending money to express views of candidates certainly existed in the founding era; newspapers, for example, routinely did it.  To say that an individual cannot spend money to express a view (e.g., by buying advertising, printing a circular, or renting an auditorium) effectively silences that person.  Among other things, the government could prohibit a person from spending money to print a newspaper.  It seems quite plausible to me that the original meaning of the First Amendment protected such an individual right.

(2) I don't think Chemerinsky thinks otherwise.  His real objection to Citizens United seems to be with extending the free speech right to corporations since the modern version of the corporation didn't exist in 1788.  But that's not a conclusive originalist argument, any more than the fact that the internet didn't exist in 1788 means that the First Amendment doesn't apply to the internet.  The interaction of a clause's original meaning with new technology is sometimes a difficult one, but no originalist thinks that the Constitution applies only to things that existed at the founding.  (Justice Scalia in D.C. v. Heller called such an argument "bordering on the frivolous".)

(3) It's worth noting (though not conclusive for original meaning) that in other areas of constitutional law we routinely assume that corporations are entitled to constitutional protection.  Corporations cannot have their property taken without just compensation and due process of law under the Fifth Amendment.  Newspapers organized as corporations (such as the L.A. Times) cannot be ordered what to print and not to print under the freedom of the press, nor can they be sued for libel without the showing required under New York Times Co. [a corporation!] v. Sullivan.  Churches organized as corporations cannot be denied their right to free exercise.  Indeed, in Austin v. Michigan Chamber of Commerce (the case allowing restrictions on corporate speech expenditures, before Citizens United overruled it), Justice Thurgood Marshall writing for the majority didn't deny that corporations have free speech rights; he concluded that those rights were not infringed by the challenged restriction because the government had shown a "sufficiently compelling rationale" in the restriction to satisfy the First Amendment. 

(4) In any event, the debate over whether corporations themselves have constitutional rights is beside the point.  Corporations are fictional entities; they have no existence apart from their shareholders.  It's the constitutional rights of the individuals who are shareholders that is at stake.  The argument is in effect that the shareholders must give up their constitutional rights in order to act through a corporation.  Perhaps this is constitutional, but that seems at least open to question.  So far as I'm aware, there wasn't any material precedent from eighteenth century English practice or free speech theory suggesting that the government could restrict speech based on a person's occupation (which seems like the nearest eighteenth century analogy).  Moreover, corporations existed in the eighteenth century (albeit in somewhat different form), and I'm not aware of conclusive evidence that they (or rather their shareholders) lacked rights.

Thus the originalist argument for Citizens United is, in oversimplified form, (a) we've always assumed that corporations have rights; (b) regardless, corporations are associations of individuals, and individuals have rights; (c) there's no evidence from the founding era suggesting it would be appropriate to conclude that individuals lose those rights when they associate as a corporation.  Is this absolutely conclusive? No, but recall that Chemerinsky's claim is that there is "no plausible argument" for Citizens United based on the original meaning.  I think the argument above is at least plausible.  

09/21/2021

Josh Blackman & Seth Barrett Tillman: The Unresolved Threshold Issues in the Emoluments Clauses Litigation
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) and Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) have posted The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct (Georgetown Journal of Law & Public Policy, Vol. 19, No. ___, 2022) (46 pages) on SSRN.  Here is the abstract:

Shortly after President Trump’s January 2017 inauguration, he was sued for violating the Foreign and Domestic Emoluments Clauses. The plaintiffs alleged that Trump’s acceptance of profits from foreign and U.S. state governments violated these once-obscure provisions of the Constitution. We filed amicus briefs in these cases, and made two arguments that had implications for separation of powers jurisprudence.

First, the Plaintiffs erred by suing President Trump in his “official capacity.” Under settled case law, a government officer violates the Constitution in his official capacity if—and only if—a government policy or custom must have played a part in the violation of federal law. Still, the Plaintiffs never alleged that President Trump acted pursuant to any government policy or custom. Nor did the Plaintiffs allege that Trump acted “under the color of law”—a precondition for pleading an individual-capacity claim. Rather, the case concerned alleged conduct that President Trump took personally. With respect to the Emoluments Clauses, the President has three bodies and can be sued in three distinct fashions: [1] an official-capacity claim involves a government policy or custom; [2] an individual-capacity claim involves action taken by a government officer under the color or law; and [3] a personal claim involves private conduct, absent state action.

We identified a second jurisdictional problem. The Plaintiffs argued that the federal courts had equitable jurisdiction to halt ultra vires action by a government officer. To support this argument, the Plaintiffs contended that federal district courts could issue an injunction—an equitable remedy—against the President. This argument conflated equitable jurisdiction and equitable relief. A plaintiff cannot establish equitable jurisdiction merely by seeking equitable relief. Rather, the plaintiffs must invoke a traditional equitable cause of action that was judicially recognized by 1789, or a cause of action that was created by Congress or the courts. The Supreme Court has not recognized a free-floating equitable cause of action to challenge ultra vires conduct by government officers.

Ultimately, the Supreme Court did not settle these issues, or any others presented by the Emoluments Clauses litigation. After President Biden’s inauguration, the Supreme Court vacated the lower-court judgments that ran against the President, and ordered the courts of appeals to dismiss the cases as moot.

As the Emoluments Clauses litigation fades in the rear-view mirror, this Article offers a retrospective of these two unresolved threshold issues. Our article also provides some guidance on how to litigate future allegations that the President personally violated the Constitution.

09/20/2021

Nicholas Kahn-Fogel: Standing in the Shadows of the New Fourth Amendment Traditionalism
Michael Ramsey

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Standing in the Shadows of the New Fourth Amendment Traditionalism (Florida Law Review, forthcoming) (42 pages) on SSRN.  Here is the abstract: 

In the past decade, the Supreme Court has revived an originalist, property-based approach to evaluating Fourth Amendment problems. The Court has used this approach to broaden its understanding of the sorts of governmental conduct that qualify as Fourth Amendment searches. So far, however, neither the Court nor scholars have offered a comprehensive assessment of the implications of this new Fourth Amendment traditionalism for what is known as Fourth Amendment standing, a doctrine reflecting the Court’s longstanding determination that only one whose own Fourth Amendment interests are implicated by government conduct is entitled to raise a Fourth Amendment challenge to such conduct. This Article, which provides the first sustained treatment of the issue, concludes that the logical consequence of the new traditionalism will be a significant expansion of the class of people entitled to make Fourth Amendment claims, including in cases involving the kinds of quotidian, physical searches and seizures that have long been the focus of complaints about law enforcement abuse of vulnerable communities.

09/19/2021

Bill Watson on Literalism in Statutory Interpretation
Michael Ramsey

Bill Watson (Cornell University - Philosophy, Ph.D. candidate) has posted Literalism in Statutory Interpretation: What Is It and What Is Wrong with It? (2021 U. Ill. L. Rev. Online 218 (2021)) (13 pages) on SSRN.  Here is the abstract:

In two recent decisions — Bostock v. Clayton County and Niz-Chavez v. Garland — a majority of the Supreme Court claimed to apply a textualist approach to statutory interpretation, and a dissent charged the majority with applying “literalism” instead. But what is literalism and what, if anything, is wrong with it? This Essay borrows a few ideas from the philosophy of language to try to pin down a more precise sense in which the majority opinions in Bostock and Niz-Chavez were arguably literalistic. The opinions may have been literalistic in the sense that they failed to consider how context pragmatically enriched what the relevant statutes asserted by fixing the operative sense of a polysemous word. If that is right, then one problem with such a literalist approach is that it pushes controversial interpretive choices underground rather than giving a linguistic (or any other sort of) argument for those choices.

09/17/2021

Alexander Loehndorf: Old Constitutions and Originalism's Normative Foundations
Michael Ramsey

Alexander Loehndorf (McMaster University) has posted In Originalism's Stead: Old Constitutions and Originalism's Normative Foundations (109 pages) on SSRN.  Here is the abstract:

This thesis concerns a philosophical analysis of originalism in a context that has not yet received sufficient attention: in the context of old constitutional regimes. Through this lens, I argue that originalism becomes something lesser in that both the normative justification and legitimacy originalism once held begins to withdraw from the theory’s principled commitments. In other words, the nature of old constitutions begins to reject a normative argument for an originalist approach. The thesis bases this analysis on one originalist theory in particular for the sake of brevity: Lawrence Solum’s public meaning originalism. It proceeds through two avenues of argument: originalism as it relates to 1) historical analysis and the interpretation-construction distinction and 2) stare decisis and democratic legitimacy. Taken together, these avenues point to originalism’s fading normative justification and legitimacy in light of the challenges that old constitutions and their characteristics pose for the judicial philosophy.

09/16/2021

Eric Segall on Justice Kagan and Living Originalism
Michael Ramsey

At Dorf on Law, Eric Segall: Labels Matter: How Professor Jack Balkin Snookered Justice Kagan and Others to Fuel Faux Originalism.  From the introduction:

In 2007, Professor Jack Balkin of Yale Law School shocked the academic world by arguing that Roe v. Wade could be justified under an "originalist" approach to constitutional interpretation, and that living constitutionalism and originalism were opposite sides of the same coin. Balkin would later expand that article into a book called, of course, "Living Originalism." 

I want to be crystal clear on two points before moving forward. Balkin's descriptive accounts of constitutional law (which rely considerably on social movements) are as sophisticated, interesting, and accurate as any I have ever read. However, his labeling of his theories as "originalism" has not been helpful and has clouded rather than clarified constitutional debates. 

In his article on abortion and original meaning, published several years before Elena Kagan's confirmation hearing in 2010, Balkin wrote the following: "When the text is relatively rule-like...the underlying principles cannot override the textual command.... But where the text is abstract, general or offers a standard, we must look to the principles that underlie the text to make sense of and apply it." 

...

Balkin's "originalist" turn was much discussed, debated, and conferenced at the time inside the legal academy. When the piece came out, Elena Kagan was Dean of Harvard Law School and would continue in that role for a couple more years. I have no personal information that she was aware of Balkin's work, but if she wasn't, that would be quite surprising. 

Here is what Kagan said at her confirmation hearing when asked about originalism (this link is to a video clip):

“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. In that way, we are all originalists.”

Kagan's "text" and "principle" approach (Balkin's words in his scholarship) to constitutional interpretation is quite similar to Balkin's theory. Let's give Kagan credit for understanding that allowing judges to use broad principles underlying most of the Constitution's imprecise provisions results in the kind of living constitutionalism that originalists have long said they deplored. Nevertheless, her uttering of that sentence--"In that way, we are all originalists"--unlike Balkin's work, reverberated both inside and outside the legal academy in ways I just can't believe she anticipated (she was testifying in front of the Senate which at the time was controlled by Democrats so she knew she had the confirmation all but locked up). 

Justices Gorsuch and Kavanugh both cited Kagan's statement about originalism in their confirmation hearings to great rhetorical effect. But Kagan's statement has been used (read manipulated) in many places before and after those confirmation hearings, almost always by folks who want to pretend that originalism is our law or should be our law. I don't believe, though I concede it is rank speculation, that Kagan would have made that statement without Balkin's scholarship explicitly tying liberal results like Roe to originalism.

And in conclusion:

As I previously wrote on this blog, far from "we are all originalists," we are in fact all legal realists now, though politicians, pundits, academics, and especially Supreme Court Justices keep trying to hide that fact, as Eric Posner suggested. Kagan's misleading sound bite, along with Balkin's attempts to transform living constitutionalism into originalism, have just made it more difficult to see SCOTUS clearly. 

Labels matter, and here so-called liberal originalism confuses and obfuscates how judges decide constitutional cases, all to the effect of helping the Republican Party. In this sense, as Mark Tushnet likes to say, "law is politics all the way down," at least in the constitutional sphere, where so many of us reside.

09/15/2021

Christine Kexel Chabot: Interring the Unitary Executive
Michael Ramsey

Christine Kexel Chabot (Loyola University Chicago School of Law) has posted Interring the Unitary Executive (50 pages)  on SSRN.  Here is the abstract: 

This Article addresses a constitutional debate that began in 1789 and rages on yet today. While the U.S. Constitution unequivocally establishes a single President, it leaves open many questions about the officers who will necessarily assist the President in executing the law. Leading originalist scholars contend that Article II’s provisions vesting “the executive Power” in a single President and requiring her to “take Care that the Laws be faithfully executed” dictate a particular governmental structure: a “unitary executive” President with absolute power to remove (and thus control) all officers in the executive branch. An express presidential removal power appears nowhere in the text of the Constitution, and originalist proponents of a unitary executive have placed heavy emphasis on history. They claim that the Founding era never included independent regulatory structures designed to insulate executive officers from presidential removal and control. This Article refutes such claims and introduces a comprehensive historical record that earlier scholars have largely missed. My work establishes that independent structures were not only present at the Founding, but that they pervaded regulatory statutes passed into law by the First Federal Congress and President George Washington.

Unitary scholars’ failure to recognize the independent structure of the Sinking Fund Commission — a Founding-era agency proposed by Alexander Hamilton and passed into law by President Washington and the First Congress — is just the tip of the iceberg. Unitarians have also missed dozens of early statutory provisions that repeat non-unitary aspects of the Sinking Fund Commission’s structure and require independent actors to autonomously reinforce the President’s duty to take care that the laws be faithfully executed. By scouring every public act passed by the First Congress, my research brings to light independent regulatory structures that pervaded the Founding era. The First Congress repeatedly dispersed executive decisions amongst multiple officers who checked one another as well as the President. This body also repeatedly delegated control over executive officers as well as significant executive power to independent judges and lay persons whom the President could not remove. All of these laws belie the conventional originalist view that the Constitution vests “exclusive control over the exercise” of “executive power” in the President of the United States. Independent regulatory structures have been with us since the beginning, and originalism provides no occasion for the Court to declare them unconstitutional now.

I think it's not entirely true that "originalist proponents of a unitary executive have placed heavy emphasis on history." I would say that originalist proponents of a unitary executive have placed heavy emphasis on text, namely the Article II, Sec. 1 vesting clause, plus the 1789 congressional debates, with some support from subsequent history.  Nonetheless, the article should give proponents of a unitary executive some pause, if the history is indeed sharply against them.

09/14/2021

Aaron Tang: The Originalist Case for an Abortion Middle Ground [Updated]
Michael Ramsey

Aaron Tang (University of California, Davis - School of Law) has posted The Originalist Case for an Abortion Middle Ground (52 pages) on SSRN.  Here is the abstract:

Few originalist arguments are as important as the claim that, at the time of the Fourteenth Amendment’s ratification, 27 of the 37 states in the union prohibited abortion at all points in pregnancy. The State of Mississippi and at least five of its amici advance this claim in Dobbs v. Jackson Women’s Health Organization, a case that invites the Supreme Court to overturn Roe v. Wade. Many scholars have repeated it as well. To originalists, the takeaway is clear. If the public in most states in 1868 understood abortion to be prohibited throughout pregnancy, then present-day state bans on abortion after six weeks—or even earlier—cannot violate the Constitution’s original meaning. The 27- states claim is thus as forceful as it is arresting.

It is also wrong. This Article uncovers several historical errors on which the claim is founded. For example, the oft-repeated 27 figure includes states whose high courts interpreted the relevant abortion laws not to apply before quickening, or the first sign of fetal movement at roughly sixteen weeks of pregnancy. The 27 count also includes states whose abortion laws punished only particularly dangerous forms of abortion (e.g., via poison), while permitting safer procedures. Other mistakes abound. In one instance, pro-life originalists count a state as prohibiting abortion pre-quickening even though the relevant law was enacted after the Fourteenth Amendment.

After assessing the evidence, my best sense is that when the Fourteenth Amendment was ratified, just 15 of 37 states deemed abortion unlawful at all points in pregnancy. In the other 22 states, pregnant persons were free to obtain an abortion at any time before quickening. The public in most states would have thus understood most abortions—those performed before roughly sixteen weeks—to be perfectly lawful when the Fourteenth Amendment was ratified.

To be sure, originalists are still correct that Roe’s viability line would have been unrecognizable to the public in 1868. But just as there’s a major difference between banning abortion after twenty-four weeks and banning it after sixteen, so too is there a big difference between banning abortion after sixteen weeks and banning it after six. Of the three positions, originalism is most consistent with the middle ground.

(Via How Appealing).

The paper's results, assuming they are correct, seem important but less methodologically conclusive than the paper suggests.  The originalist question is not what a majority of states did in 1868.  The question is whether access to abortion was a "privilege[ ] or immunit[y] of citizens of the United States" in 1868.  That question isn't answered only by counting up what states did at the time (although surely the more states that allowed an action to be prohibited, the less one would think that action was a privilege or immunity).  For example, even if most states did not have an income tax in 1868, that would not prove that a state income tax would violate a privilege or immunity.  Plus, 15 of 37 states is still a pretty big number (40%).

RELATED: In the Sixth Circuit's recent decision in Memphis Center for Reproductive Health v. Slatery, Judge Amul Thapar, concurring and dissenting, argues at length that the Roe/Casey framework is inconsistent with the Constitution's original meaning.  Among many other things, he says (footnotes omitted):

The [Roe] majority asserted that it “was not until after the War Between the States that [abortion] legislation began generally to replace the common law.” Roe, 410 U.S. at 139. Not so. According to one scholar, by 1849, eighteen of the thirty states in the Union had passed statutes limiting abortion. Eugene Quay, Justifiable Abortion–Medical and Legal Ethics, 49 Geo. L.J. 395 app. 1 at 447–520 (1961) (collecting statutes). At the end of 1864, twenty-seven of the Nation’s thirty-six states had such laws. Id. On the eve of the Fourteenth Amendment’s ratification, this number had risen to thirty states. Id.; see also Roe, 410 U.S. at 174–75 & n.1 (Rehnquist, J., dissenting) (noting that the number was thirty-six when including the territories). The tide continued to shift in favor of greater abortion restrictions during the Reconstruction Era. Of the seven states that lacked abortion restrictions in 1868—Delaware, Georgia, Kentucky, North Carolina, Rhode Island, South Carolina, and Tennessee—all but one adopted abortion statutes by 1896. See Quay, 49 Geo. L.J. 395 app. 1 at 447–520. And the last of those states passed its statute by 1910. See id. at 475–76.

(Via Ed Whelan at NRO Bench Memos.)

Professor Tang's paper is an important qualifier to these claims -- statutes "limiting" abortion are not necessarily complete prohibitions, and apparently sometimes they weren't.  It's important not to conflate these two claims (to be clear, I'm not suggesting that Judge Thapar does, just that it happens sometimes).  It's possible, as Professor Tang suggests, that Judge Thapar might be correct about the lack of an unlimited right to abortion in 1868 and yet there might have been a limited right to abortion.  But more fundamentally I agree with this point by Judge Thapar:

A right to do something because the state has not yet regulated it is quite different from a right to do something because the state cannot regulate it. Cf. PennEast Pipeline Co. v. New Jersey, 141 S.Ct. 2244, 2261 (2021) (“[T]he nonuse[] of a power does not disprove its existence.” 

UPDATE:  At Volokh Conspiracy, Josh Blackman has similar (but more extended) thoughts: The Fact That X States Failed To Criminalize An Act in 1868 Does Not Mean That Committing The Act Is A Fundamental Right.  From the conclusion:

What would it take to make the originalist case that the right to abortion is "deeply rooted," and was considered fundamental in 1868? Perhaps if it was mentioned in the same breath as other well-known fundamental rights: the freedom of speech, freedom of conscience, liberty of contract, the right to keep and bear arms, and so on. We can cite chapter and verse to support these other rights. But simply looking to states that failed to criminalize an act is not enough.

COMMENT BY ANDREW HYMAN:  When a right is not deeply rooted in history, that is an excellent reason to refrain from constitutionalizing it via the Due Process Clause.  But when a right is deeply rooted, it still must be a procedural rather than substantive right in order to have any plausible constitutional basis under the Due Process Clause.  As Justice Byron White wrote in a 1977 dissent, “Although the Court regularly proceeds on the assumption that the Due Process Clause has more than a procedural dimension, we must always bear in mind that the substantive content of the Clause is suggested neither by its language nor by preconstitutional history; that content is nothing more than the accumulated product of judicial interpretation of the Fifth and Fourteenth Amendments.”  The Court ought to acknowledge that simple truth stated by Justice White, and then conform to it.  As for the substantive provisions in the Bill of Rights that have been incorporated against the states, using the Due Process Clause for that purpose was simply wrong; those enumerated substantive rights should have been incorporated via the Privileges or Immunities Clause whose plain meaning instructs the courts to apply against the states those rights of U.S. citizens that already apply against the federal government.