05/12/2021

New Book: "The Words that Made Us" by Akhil Amar
Michael Ramsey

Recently published: The Words That Made Us: America's Constitutional Conversation, 1760-1840 (Basic Books 2021) by Akhil Amar (Yale).  Here is the book description from the publisher:

A history of the American Constitution’s formative decades from a preeminent legal scholar
 
When the US Constitution won popular approval in 1788, it was the culmination of thirty years of passionate argument over the nature of government. But ratification hardly ended the conversation. For the next half century, ordinary Americans and statesmen alike continued to wrestle with weighty questions in the halls of government and in the pages of newspapers. Should the nation’s borders be expanded? Should America allow slavery to spread westward? What rights should Indian nations hold? What was the proper role of the judicial branch?
 
In The Words that Made Us, Akhil Reed Amar unites history and law in a vivid narrative of the biggest constitutional questions early Americans confronted, and he expertly assesses the answers they offered. His account of the document’s origins and consolidation is a guide for anyone seeking to properly understand America’s Constitution today.

05/11/2021

New Book: "Administrative Law Theory and Fundamentals" by Ilan Wurman
Michael Ramsey

Recently published: Administrative Law Theory and Fundamentals: An Integrated Approach (Foundation Press 2021), by Ilan Wurman (Arizona State).  Professor Wurman has posted the Introduction on SSRN; here is the abstract: 

New casebooks can be hard to justify. Many legal doctrines and their canonical cases are well established. But few fields are more in need of fresh thinking than administrative law. My new casebook, Administrative Law Theory and Fundamentals: An Integrated Approach, newly out with Foundation Press, seeks to provide such thinking. To my knowledge, it is the only administrative law casebook with the words “theory” and “fundamentals” in its title. And the reason might be that there is at present no coherent theory regarding the nature of administrative power. And the debates surrounding administrative power, on the part of both proponents and opponents of administrative government, have stalled.

The new casebook proposes a theory of administrative power that better explains constitutional text and structure, as well as historical and modern practice, than competing accounts. It argues that there are “exclusive” powers that only Congress, the President, and the courts can respectively exercise, but also “nonexclusive” powers that can be exercised by more than one branch. This theory of “nonexclusive powers” allows students and scholars of administrative law to make more sense of—or better critiques of—administrative concepts such as delegation, quasi-powers, judicial deference, agency adjudications, the chameleon-like quality of government power, and of the separation of powers more broadly. This five-page introduction seeks to situate this theory within the existing administrative law scholarship.

And from the conclusion (footnotes omitted):

This theory of nonexclusive and exclusive powers advances the field of administrative law. It explains why the concept of “quasi-legislative” and “quasi-judicial” power is appealing, but ultimately erroneous. It explains the “chameleon-like” quality of government power. It explains why Congress must authorize agencies to promulgate “legislative rules,” which are nonexclusive legislative power, but not interpretative rules or policy statements, which are executive power simply. It explains what Chief Justice Marshall meant when he wrote that Congress cannot delegate power that is “exclusively
legislative” in nature, but it can delegate to other departments power that it could have exercised itself, namely, the power to fill in the details pursuant to a more general provision. The theory better explains Chevron deference, once it is acknowledged that in most Chevron cases agencies are not actually interpreting law, but rather making policy—that is, exercising nonexclusive legislative power.  And the theory explains why most, but not all, administrative  adjudications are constitutional. In summary, administrative law is in need of a serious rethinking and clarification—and my new casebook lays the necessary groundwork. It takes formalism and originalism seriously, but concludes that much, although not all, of the administrative state may be constitutional after all.

05/10/2021

Federalist Society Executive Branch Review Conference Starting Next Monday
Michael Ramsey

A week from today (Monday, May 17) is the beginning of the Federalist Society's annual Executive Branch Review Conference (held virtually again this year).  Here is the announcement from the Federalist Society:

Please join us for the Federalist Society's Executive Branch Review Conference Week which will take place virtually May 17-20 on Airmeet, a new platform that includes a networking option. Webinar panels this year will focus on "The Next Four Years" and include topics such as civil rights in the Biden Administration, the future of social media regulation, judicial nominations and confirmations, the environmental agenda, religious liberties, financial services, and much more.
 
There is no cost to attend and all panels will be live-streamed and available to watch online with up to 6 credits of CLE available (there is a minimal cost for CLE credit). To learn more and register, visit fedsoc.org/ebr9.
 
And here is the program for the first day:
 
11:00 a.m. - 12:30 p.m.
Non-Delegation? Or No Divesting? Art. I, Sec. 1 at the Founding and Today

Administrative Law & Regulation and Federalism & Separation of Powers Practice Groups

Whether as the result of hyper-partisanship or as a residue of the constitutional design for lawmaking, government by executive “diktat” is lately increasing.  Many of these executive actions appear to have dubious—if any—statutory authority, but the courts have been reticent to validate objections along these lines.  The U.S. Supreme Court has indicated a willingness to revisit and possibly to reinvigorate the non-delegation doctrine (with 5 Justices adhering to that view publicly), or at least to put some teeth into its supposedly constraining intelligibility principle.  To do so, the Court first will have to grapple with whether Article I, Section 1 of the Constitution contains a non-delegation principle at all?

Featuring: 

Prof. Nicholas Bagley, Professor of Law, University of Michigan Law School

Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School

Prof. Jennifer Mascott, Assistant Professor of Law, Antonin Scalia Law School

Prof. Nicholas Parrillo, William K. Townsend Professor of Law, Yale Law School

Moderator: Hon. Neomi Rao, United States Court of Appeals, D.C. Circuit

1:00 p.m. - 2:30 p.m.
Trade and Its Cross-Cutting Equities: New Horizons, New Challenges

Intellectual Property and International & National Security Law Practice Groups

The Trump Administration re-focused U.S. trade policy on the interests of several sectors of the U.S. market, including traditional manufacturing. How the Biden Administration directs U.S. trade policy remains to be seen.

Rising to the challenge of IP theft—both by commercial firms and strategic actors—the previous Administration took a hard look at trade with China and other competitors. Keeping pace with emerging technologies, it re-aligned U.S. policies on export control and investment review. Meanwhile, the U.S.-Mexico-Canada Agreement (USMCA) re-configured the United States’ two most important trade relationships. Being a treaty in force, USMCA is likely to stay the touchstone for those relationships. Other areas of trade policy, however, the President may more readily shift in new directions. A range of national security-related policies in particular fall within Executive Branch discretion, and because of the granularity of so many critical trade-related rules, the interplay of White House preferences and Interagency equities inevitably will influence policy outcomes as well.

The ideal for any market is the frictionless flow of goods, services, capital, and ideas. Seldom, if ever, however, does any given market live up to the ideal. Trade, because it takes place across different national markets and regulatory régimes, entails distinctive challenges. This Conference Panel, Trade and Its Cross-Cutting Equities: new horizons, new challenges, will explore several key challenges that lie ahead as the Executive Branch seeks to steer its trade-related departments and agencies to make best use of its particular tools of the trade.

Featuring:

Prof. Thomas D. Grant, Faculty of Law, University of Cambridge 

Hon. F. Scott Kieff, Fred C. Stevenson Research Professor, George Washington University Law School 

Dr. Joshua Meltzer, Senior Fellow, The Brookings Institution 

Moderator: Mr. Steven Tepp, President & CEO, Sentinel Worldwide

05/09/2021

A Response by Leonid Sirota & Mark Mancini on the Rule of Law
Michael Ramsey

At Double Aspect, Leonid Sirota & Mark Mancini: Interpretation and the Value of Law II (responding the this essay by Stéphane Sérafin et al., critiquing an earlier Sirota & Mancini post).  Here is the introduction:

We read with interest Stéphane Sérafin, Kerry Sun, and Xavier Foccroulle Ménard’s reply to our earlier post on legal interpretation. In a nutshell, we argued that those who interpret legal texts such as constitutions or statutes should apply established legal techniques without regard for the political valence of outcomes. Only in this way can law function as a common reference and guide in a pluralistic, democratic society in which, as Madison eloquently argued in Federalist No. 10, disagreement about fundamental values and the policies required to implement them is pervasive and bound to remain so “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it”.

Our interlocutors claim that our argument leads legal interpretation into “insipid literalism” and, ultimately, sees law as nothing more than a form given to the outcome of power struggles, rather than as the product of reason striving to advance the common good. We remain unconvinced. Our interlocutors seem to wish to escape the more controversial uses to which the “common good” term has been put, but rely on ambiguous claims in doing so. We write today to address some of these claims.

The bottom line is this: if our interlocutors wish to fundamentally change the way we understand texts by sotto voce urging interpreters to adopt a “substantively conservative” position at the outset of the interpretive task, we must dissent. If they wish to simply “tune-up” the way we use purpose and context to enrich our understanding of bare texts, then that is a worthy contribution to the ongoing effort in which many of us are engaged: trying to make Canadian interpretation more workable, less results-oriented, and more focused on the text itself, understood in light of its legislative context in real, practical cases.

Our response is divided into two parts. First, we describe how our interlocutors misunderstand the relationship between, as Jeremy Waldron put it, “The Concept and the Rule of Law”. Second, we catalogue the ways in which our interlocutors’ position is muddled.

05/08/2021

New Issue of the Harvard Journal of Law and Public Policy
Michael Ramsey

The Spring 2021 issue of the Harvard Journal of Law and Public Policy is now published, with two principal articles:  

Revisiting Smith: Stare Decisis and Free Exercise Doctrine  by Branton J. Nestor

Who Determines Majorness?  by Chad Squitieri

From the introduction to the second: 

Do federal courts have the constitutional authority to definitively determine questions of politics? The answer would appear obvious: No. Separation-of-powers principles mandate that the judiciary play no direct role in the political process. Instead, federal courts are limited to faithfully applying the outcome of the political process (i.e., law) to particular sets of facts. Peculiar then is the major questions doctrine, which calls on courts to determine policy questions’ “economic and political significance.”

The major questions doctrine is said to do one thing but in practice does another. What is more, at least two sitting Supreme Court Justices have proposed strengthening the major questions doctrine so that it does something else entirely. Both of those Justices are committed textualists. The present moment thus calls for a thorough explanation as to why textualists should reject the major questions doctrine—including what the doctrine is said to be, what the doctrine actually does in practice, and what the doctrine might soon become.

And from the first: 

The Supreme Court held in Employment Division v. Smith that the Free Exercise Clause does not generally protect religiously motivated conduct from neutral laws of general applicability. That holding, although good law, remains controversial, with many scholars and judges now asking whether, if Smith was wrong, it should be overturned. Wading into this debate, this Article suggests that one common stare decisis consideration—a precedent’s consistency with related decisions—likely cuts against retaining Smith, at least to the extent that Smith’s holding and rationale are compared to the Supreme Court’s broader approach to the Religion Clauses. This Article first argues that Smith broke from prior Free Exercise Clause precedent and that, although Smith remains good law, it is in tension with many strains of Free Exercise Clause precedent today. This Article next argues that Smith is in tension with the ascendant focus on text, history, and tradition that has become increasingly central to contemporary Establishment Clause doctrine. While this Article does not fully resolve Smith’s stare decisis fate, it suggests one important weakness confronting any attempt to defend Smith on stare decisis grounds—with that weakness, and the doctrinal tensions it reveals, pointing the way toward how to reform contemporary Free Exercise Clause doctrine to better account for the text, history, and tradition of the Religion Clauses.

 

05/07/2021

David Forte on Hadley Arkes et al. on Originalism
Michael Ramsey

At Law & Liberty, David Forte (Cleveland State): Originalism and Its Discontents (responding to this essay by Hadley Arkes, Josh Hammer, Matthew Peterson, and Garrett Snedeker).  From the introduction: 

The King is Dead. Long Live the King.

So do our friends, the authors of “A Better Originalism,” intone their unsympathetic obsequies over the corpse of originalism, struck dead, they declare, by the hand of Justice Neil Gorsuch in Bostock v. Clayton County. One can understand their dismay over the forms that originalism has often taken. Justice Antonin Scalia, for example, often dismissed the moral imperative behind certain constitutional provisions. The authors note appropriately, for example, that in Obergefell v. Hodges, he declared “[The] substance of today’s decree is not of immense personal importance to me.” Such a perspective could, if adopted rigorously, turn respect for the positive law into positivism. Moreover, the fear is that such an ungrounded legalism results in relativism.

The authors declare that Justice Gorsuch’s textualism signals “the failure of originalist jurisprudence,” and they then go a step further by condemning a jurisprudence that “solely relies on proceduralist bromides,” chiding that “[t]oday’s legal eagles exalt procedure over substance.” I do not dwell on those rhetorical overstatements, but turn to the authors’ more fully justified critique that “the only rational way to interpret a legal text is both through its plain meaning and the meaning given to it by the distinct legislative body (or plebiscite) that ratified it.” In fact, that view of textualism was championed by Justice Samuel Alito in his dissent to Bostock.

05/06/2021

Charles Kesler on Shep Melnick on "Crisis of the Two Constitutions"
Michael Ramsey

At Law & Liberty, Charles Kesler (Claremont McKenna - Government): America’s Constitutional Crisis (responding to Shep Melnick's review of Professor Kesler's book).  From the introduction: 

Law & Liberty turned over a lot of space (“Claremont’s Constitutional Crisis,” March 29) to Shep Melnick’s review of my recent book. I wish he had made better use of it. Looking over the dozen pieces he has written for me over the years at the Claremont Review of Books, I find a sobriety and balance that he seemed to misplace in this one.

Perhaps it’s because he can’t help illustrating the thesis of Crisis of the Two Constitutions even as he deprecates it: that American politics grows embittered because it is increasingly torn between two rival constitutions, cultures, and accounts of justice. At any rate, I shall return the favor by asking Law & Liberty for considerable space myself.

...

[Melnick's] argument is threefold: (1) there are “serious flaws in the American regime” that I ignore; (2) the influence of “progressive historicism” is not as baneful as I claim; and most dramatically, (3) the book as a whole “constructs a narrative that encourages anti-constitutional extremism” à la Trump. The three are connected. Because I have too high an opinion of the founding, Melnick asserts, I take too negative a view of progressivism, and end up imagining a crisis where none exists—thereby helping actually to create one.

Professor Kesler's book is Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness (Encounter Books 2021).

 

05/05/2021

Eric Segall Reviews Jamal Greene's "How Rights Went Wrong"
Michael Ramsey

Eric Segall (Georgia State University College of Law) has posted The Battle Over Rights is the Problem but Judges are not the Solution (Constitutional Commentary, forthcoming) (15 pages) (reviewing Jamal Greene, How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart) on SSRN.  Here is the abstract:

In his new book, How Rights Went Wrong, Professor Jamal Greene takes apart much of American constitutional law in a detailed and beautifully written account of how the Supreme Court's approach to rights has made us more polarized and more divided. But Professor Greene, who wants the Court to take a more detailed, fact specific, and contextual approach to rights cases is looking for answers in the wrong place. The solution to the Court's inability to provide some measure of balance to our great divides over rights is to return most of those issues to the political process where, absent clear text or history, they belong.

Here is my prior post on Professor Greene's book.

As is often true, I agree with much of what Professor Segall says -- but I think we differ very substantially on what constitutes "clear text or history."

RELATED:  At Dorf on Law, Professor Segall has this post on the recent "profane cheerleader" case: Cursing Cheerleaders, Constitutional Interpretation, and Law as Social Policy.

05/04/2021

Is There a Presidential Exception to the Usual Power of Congress to Impose Disqualification for Executive Branch Employment as a Punishment for Federal Crimes?
Andrew Hyman

The Constitution prevents Congress from adding qualifications for members of Congress, but that fact does not automatically limit how Congress can treat presidential qualifications.  However, in a February post by Professors Seth Barrett Tillman and Josh Blackman at the Volokh Conspiracy blog, they wrote (all bracketed words are as in their blog post):

In Federalist No. 60, Hamilton argued that Congress lacks the power to add to the qualifications for elected federal positions. In that paper, Hamilton wrote, "[t]he qualifications of the persons who may choose or be chosen [for a seat in Congress], as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature."

In that second sentence, Tillman, Blackman, and Hamilton are 100% correct, and they accurately limit the scope of that sentence to seats in Congress.  But the first sentence is an overbroad inference from the second sentence, because the first sentence apparently makes an assertion about all elected federal positions, not just seats in Congress.  

It should go without saying that presidents and members of Congress are in different branches of government, controlled by different clauses in different sections of the Constitution, and it would be wrong to say that Federalist 60 somehow supports the idea that Congress has no power to add qualifications for the presidency, which is an elected federal position.  Such a lack of congressional power is exactly the position that Blackman and Tillman are advocating, but they ought to have made clear that Hamilton said nothing in Federalist 60 to prove it.

Now, in an April 30 piece in the Illinois Law Review Online, Tillman and Blackman suggest the same overbroad inference from Federalist 60 (all bracketed words are as in their piece):

Our argument starts from a basic premise: Absent express constitutional authorization, Congress cannot impose additional qualifications for elected federal officials beyond those already expressly enumerated in the Constitution. This position is not novel. In Federalist No. 60, Alexander Hamilton argued that Congress lacks the power to add to the qualifications for elected federal positions. He wrote, “[t]he qualifications of the persons who may choose or be chosen [for a seat in Congress], as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the [national] legislature.”

This last sentence by Tillman and Blackman is correct, but the rest exaggerates it.  This exaggeration can be confirmed by looking at the relevant material from Federalist No. 60 without any ellipsis or brackets.  Hamilton begins by discussing the authority of the national government (emphasis added):

Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose or be chosen, as has been remarked upon another occasion, are defined and fixed in the constitution; and are unalterable by the legislature.

Hamilton is obviously referring here not to Article II, but rather Article I of the Constitution, which says (emphasis added): 

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Choosing Senators.

This key phrase (“Times, Places and Manner”) is used only with respect to Congress, and not with respect to the President, in the U.S. Constitution.  So why do Tillman and Blackman quote Federalist 60 to bolster their argument about the President?  As I wrote previously at this blog, “Notice that that time, place, and manner language of Article I forms a list that excludes items not listed, whereas Article II does not include such a list pertaining to presidential elections (that is, Article II does not seem to create any ‘presidential exception’ to the usual power of Congress to impose disqualification for federal office as a punishment for federal crimes).”  It's true that the Constitution lists some presidential qualifications:

No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty-five Years, and been fourteen Years a Resident within the United States.

But this is a list of civil qualifications, which impliedly rules out other civil disqualifications; it's not a list of criminal disqualifications, and so does not rule out any criminal disqualifications.  The expressio unius canon only rules out items of the same type as those listed, and does not rule out things of a different type, which is probably why Hamilton did not rely upon the listing of congressional qualifications to rule out other congressional disqualifications; instead, Hamilton relied upon the "time, place, or manner" language of Article I which ruled out much more than did the listing of congressional qualifications.  Likewise, when Madison in Federalist 52 applied the expressio unius canon to the listing of qualifications for House members, he only found that it forbade Congress from imposing additional civil disqualifications ("the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith").

Lament Hilts: Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause
Michael Ramsey

Lament Hilts (independent) has posted Understanding Nativist Elements Relating to Immigration Policies and to the American Constitution’s Natural Born Citizen Clause (28 pages) on SSRN.  Here is the abstract: 

INTRODUCTION:
I start with a definition. A “nativist” element of a legal system is one which preserves some benefit for, all or some of, the nation’s citizens or its indigenous inhabitants, as opposed to granting that benefit neutrally to citizens and immigrants alike.

Not so long ago the essential morality of such a distinction was considered so obvious that no defense was thought to be necessary. Indeed, in many traditional societies there is no distinction between the indigenous inhabitants (that is, the people) and the nation. Any attempt by a government to treat newcomers equally in all respects would have been akin to incomprehensible.

Today, in the West, there is a growing view that all such distinctions are actual or tantamount to invidious racial, ethnic, or religious discrimination. Still such distinctions have long-standing bona fides — even in Western societies. For example, under the United States Constitution (1787), all elected federal officials in the national government must be held by citizens. Members of the diet’s lower chamber must be 25 years old, be an inhabitant of the state in which they are elected, and have held citizenship for at least 7 years. Similarly, members of the upper chamber must be 30 years old, be an inhabitant of the state in which they are elected, and have held citizenship for at least 9 years. Like holding a congressional seat, eligibility to hold the presidency and vice presidency requires that the candidate meets an age requirement (at least 35 years old) and a residency requirement (at least 14 years in the United States). However, unlike holding a congressional seat, eligibility to hold the presidency and vice presidency is limited to natives, or more properly, using the language of the United States Constitution, to “natural born citizen[s]” — a person who is born in the United States and a citizen since birth.

This essay asks two related questions: Is a society justified in distinguishing citizens and immigrants? Is a society justified in distinguishing citizens from birth from those who become citizens subsequently through naturalization?

CONCLUSION:
The efforts of the modern commentators to explain the Natural Born Citizen Clause as one rooted in bigotry and prejudice directed at naturalized citizens is the product of an intellectual milieu of large, powerful countries, where there is no memory of bombs falling on the nation’s core territory or any existential fear of conquest by foreign powers. The concern of these authors is merely the fair distribution of society’s benefits and opportunities, between citizens and immigrants. The “other,” to the extent he exists at all, is just a person who has not yet become or who has not yet been allowed to become an American.

Modern theories of separation of powers and constitutional design have little or nothing to do with the Framers’ and Founders’ world of revolutions and imperial wars—where oceans and frontiers pose dangers—as you yourself pose dangers to others—where others may burn down your capital as you may burn down theirs. The Natural Born Citizen Clause was the limited policy response of a People who believed that beyond one’s national frontier was a dangerous world. That the clause’s purpose is no longer widely understood indicates that much has changed since 1787.

05/03/2021

What Does the Constitution Mean by a State Legislature?
Mike Rappaport

            The Constitution’s multiple references to “state legislatures” raise difficult and significant issues.  The main question is whether we can give a consistent answer to the meaning of this term across a large number of different constitutional clauses that both fits the constitutional text and gives a plausible answer.  In this essay, I begin to offer a solution to this significant matter. 

            Developing a satisfactory answer is important for several reasons.  First, it provides an originalist answer to a difficult interpretive question – something important in its own right that also demonstrates the power of originalism as an interpretive method.  But it is also important because it addresses two of the most significant questions involving elections in recent years – questions such as (1) whether courts can use state constitutional provisions to displace laws passed by state legislatures that regulate the presidential election and (2) whether state referenda can be used to bypass state legislative redistricting decisions by assigning redistricting decisions to independent commissions.

            The Constitution’s frequent use of “state legislatures” requires two main questions to be answered.  One question involves whether an entity other than the state legislature can take an action when the Constitution assigns that action to the state legislature.  For example, the Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” the members of the electoral college.  Does that provision allow the state Constitution to override the state legislature’s decision as to the manner of appointing the electors?  And if it does, can the courts enforce that constitutional provision to the detriment of the state legislature?  In the 2020 election, the Pennsylvania Supreme Court used the state constitution to override the election law that the state legislature had enacted.  While the United States Supreme Court refused to hear the challenges to that decision, the question remains whether that action was constitutional under the U.S. Constitution.

            A similar issue that arises here occurs when the state, either through its constitution or some other means, assigns a decision of the state legislature to another entity.  For example, the Constitution provides that “the Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  Does this provision allow the state constitution or the voters through a referendum to assign redistricting decisions to an independent commission rather than the state legislature?  Some states have done exactly that and the Supreme Court in 2015 approved of the action in Arizona State Legislature v. Arizona Independent Redistricting Comm’n.  My short answer to these questions is that the United States Constitution prevents the state constitution or the voters from assigning any of these decisions to anyone other than the state legislature.

            The second question raised by the state legislature provisions involves which entity makes a decision when the state legislature is assigned that task.  Is the decision to be made by the state legislature proper – that is, both legislative houses but with no opportunity for the governor to veto it?  Or is it to be made by the state legislature with opportunity for a gubernatorial veto?  Sometimes the practice is for one (for example, state legislative ratification of constitutional amendments), at other times the practice is for the other (state legislative determination of the times, places and manner of holding congressional elections).  Is the practice correct, and if so, why?  Here, I argue that the Constitution draws a distinction between tasks for the state legislature that involve enacting laws and tasks that do not. 

State Legislatures or Constitutions and Popular Votes

             Let me start out with the first question.  Can the state constitution make a decision instead of the state legislature?  The short answer is no.  The U.S. Constitution means what it says.  The fact that the state legislature is assigned the decision means the state constitution (especially if enacted in part by an entity other than the state legislature) cannot override the state legislature.  The U.S. Constitution takes priority over the state constitution.  This indicates that the Pennsylvania Supreme Court acted unconstitutionally prior to the 2020 presidential election when it relied upon the state constitution to override the state statute that had required a mail in ballot to be received by 8:00 PM on election night and instead held that the ballot could be received up to three days after the election.

            Similarly, if the people of the state, through a popular vote allowed by the state constitution, assign the decision on how to hold congressional elections to a redistricting commission, that too is unconstitutional.  The Supreme Court in Arizona Independent Redistricting Comm’n (2015) sought to defend the constitutionality of these commissions by arguing that the people of the state are exercising legislative power and therefore constitute a state legislature.  But the term “state legislature” does not refer to anyone or anything that exercises legislative power.  Rather, it refers to a specific type of institution and therefore the people of the state in a popular vote are not a state legislature.  While the Supreme Court’s approval allows states to combat gerrymandering through popular referenda and redistricting commissions, it does so in an unconstitutional manner.  The only constitutionally authorized ways to combat gerrymandering is through state or congressional legislation. 

            In fact, various constitutional provisions are inconsistent with understanding the people of the state as the state legislature, as, for example, in the clause that provides “if [Senate] Vacancies happen by Resignation or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the legislature, which shall then fill such vacancies.”  The people of the state do not take recesses.  The Constitution may contemplate some variety in types of state legislatures, but it does not contemplate a popular vote of the people as a state legislature.   

State Legislatures Alone or With Governors

            Now, consider the second question.  Sometimes the practice treats the state legislature as simply the two houses and at other times it treats it as the two houses along with presentment to the governor.  But how can that practice be made consistent with the constitutional text?

            Here, the answer turns on the type of activity that is assigned to the state legislature.  If the activity involves passing a law, then the state legislature can use its normal process for passage of a law, which in virtually all states involves the possibility of a gubernatorial veto.  Thus, when the Constitution confers on the state legislature the power to regulate “the Times, Places and Manner of holding Elections” for members of the House of Representatives,” it contemplates an election governed by laws enacted by the state legislature.  The legislature can then use its ordinary process for passing such laws.

            By contrast, if the activity is simply a vote on a matter that does not require the passage of a law but instead is simply part of a process established by the Constitution, then the Constitution assigns the task entirely to the state legislature, without the governor’s participation.  For example, the original Constitution provided that the “Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years.”  Since selecting a Senator does not involve passage of a law, the governor is not involved.  A similar result applies to the ratification of constitutional amendments, which does not involve passage of a law, but is simply part of a two part process established by the Constitution.

            If this is the distinction that the Constitution draws, then how can we derive it from the text?  In other words, how do we derive two different meanings from largely the same language, and how do we then determine which of these meanings apply in which situations?  Let’s begin with deriving two different meanings from largely the same language.  Significantly, this language is capable of both meanings.  Sometimes the words state legislature are used to mean only the two houses – what we can call “the state legislature proper.”  At other times, the words are used to refer to the two houses of the state legislature along with presentment to the governor – as when someone describes a law as having been enacted by the state legislature, even though the governor was involved.  Thus, the language is perfectly consistent with both meanings.

            Which of the two meanings was employed depends on the context.  In the case of the Constitution assigning a task that involves passage of a law, such as regulating the times, places, and manner of holding congressional elections, the context suggests enactment by the normal state legislative process for passing a law.  In that situation, the Constitution is saying, the state legislature has the power to regulate by law the times, places and manner of holding elections.  It does not need to say that explicitly because it is understood that such actions would normally be enacted through laws.  By contrast, in the case of the Constitution assigning a task, such as selecting a Senator that does not involve passing a law, the term “state legislature” has its more straightforward or proper meaning.  

            The hardest provision to interpret is the one governing the selection of the electoral college.  The provision states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors . . . .”  Historically, it appears that state legislatures have proceeded in two ways under this provision.  When the legislature selected the electors, as happened in the early years of the Republic, the legislature proper would make the decision.  When the legislature authorized an election to select the electors, the legislature did so through the ordinarily lawmaking process with an opportunity for gubernatorial veto.

            Interpreting the provision to authorize this practice is something of a challenge.  One would have to understand the provision to require that the legislature act by law when legislation is required and through the legislature proper when a law is not needed.  That would require reading the provision to say “Each State shall appoint, in such Manner as the Legislature by law or on its own, as the circumstances require, may direct . . . .”  Is this a permissible textual interpretation? 

            Admittedly, this interpretation is a bit of a stretch, but it does have some significant support in addition to fitting the practice.  First, given that the other constitutional provisions involving the state legislature are properly interpreted as using the term to mean either the legislature proper or the legislature by law, depending on the context, this interpretation gains support as having a meaning that is reflected in these other constitutional provisions.  It is a traditional canon of textual interpretation to read constitutional provisions to accord with other provisions in the Constitution.  Second, since this interpretation fits the practice, this reading appears to be how state legislatures historically must have interpreted the provision. 

            In the end, the question of how to interpret the different constitutional provisions involving state legislatures is a challenge both for our constitutional understanding and for originalism.  If it were impossible to reconcile these different provisions in a consistent way, as seems to be assumed by some nonoriginalists, then we would have a much poorer understanding of our Constitution.  And it would give nonoriginalists greater freedom to choose how to interpret provisions, permitting them to reach results that they prefer on political grounds.  But if I am right, the original meaning makes sense, can be understood, and places strict limits on how the Constitution applies to state legislatures in some extremely important cases.  

William Baude on the Supreme Court's New Second Amendment Case
Michael Ramsey

At Summary, Judgment, William Baude: Initial thoughts on the constitutional right to concealed carry in NY Rifle and Pistol Association v. Corlett, and a possible trip to Hawaii.  From the introduction: 

The Supreme Court recently granted certiorari in NY Rifle and Pistol Association v. Corlett, likely to be the first major Second Amendment case in a decade. The question presented is whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

I'm far less expert in the Second Amendment than a lot of folks writing about the case, but for Chicago's public interest auction I agreed to write about a topic of the winner's choosing, and this is what he chose.

So here's how I think about the case....

And from the core of the discussion; 

As a matter of historical practice, states had bans on concealed carry during the nineteenth century. These bans are relevant both for potential liquidation of the meaning of the Second Amendment, and more to the point, for the original meaning of the Fourteenth Amendment, which is the Amendment at issue in Corlett. Robert Leider has great work on this too.

That said, it's a harder question whether states can have those bans in a regime that also has no right to open carry. Maybe the right should still be all about the right to open carry, because maybe that was understood to be the core of the Second Amendment right. (After all, if one thinks the right is somewhat militia related, members of the militia bore arms openly, and bore arms that were hard to conceal.)

Or maybe we would give states more flexibility, saying that they can choose whether to allow open carry or concealed carry. But it does seem implausible that the state can effectively stop citizens from bearing arms outside the home.

With these questions in view, it's not clear to me that Cortlett is the best vehicle for considering these questions, compared to the recent Ninth Circuit decision from Hawaii. [ed.: referring to Young v. Hawaii, discussed here.]

In conclusion:

But it's also possible that [the Justices] will realize as they dig in to the case over the summer that it would have been wiser to grant the Hawaii case. Indeed, it's not too late. When they get a cert petition from Hawaii [ed.: meaning, from counsel for the claimant in the Hawaii case] over the summer, they might consider granting it and consolidating it with New York so that they have the option of resolving the issue in a simpler but accurate way.

At Volokh Conspiracy, Josh Blackman agrees that consolidating the cases would be a good approach.  

Without getting into the best procedure, it seems to me (particularly from an originalist perspective) that there's something awkward about considering only the concealed carry part of the public carry question.  That's especially so if -- as a number of commentators including Professors Baude and Blackman seem to think -- the originalist case for open public carry is stronger than the orignialist case for concealed public carry.

05/02/2021

Josh Blackman & Seth Barrett Tillman: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383?
Michael Ramsey

In the Illinois Law Review Online, Josh Blackman & Seth Barrett Tillman: What Happens if the Biden Administration Prosecutes and Convicts Donald Trump of Violating 18 U.S.C. § 2383? (part of a symposium on President Biden's first 100 days).  From the introduction (footnotes omitted): 

... Attorney General Merrick Garland will soon face a difficult decision: Should he pursue a criminal prosecution of Trump for his conduct leading up to, and during the events of January 6, 2020? One possible basis for prosecution would be under the Insurrection Act, 18 U.S.C. § 2383. This statute provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States. [emphasis added]

In this Article, we take no position whether Trump committed the substantive offenses of inciting or engaging in an insurrection. Rather, we will analyze the potential legal consequences of convicting Trump under this statute. Specifically, what would it mean for Trump to be “incapable of holding any office under the United States.” Would this punishment disqualify Trump for serving a second term as President, should he be elected?

...

... In our view, if Trump were convicted of violating § 2383, he would be disqualified from holding appointed federal positions. However, that conviction would not disqualify him from holding the presidency or any other elected federal position. We think our reading is correct as a matter of original public meaning with respect to the Constitution of 1788. And this conclusion is unchanged by Sections 3 and 5 of the Fourteenth Amendment. Our position is supported by modern Supreme Court and other federal court precedent.

In our view, even if Trump were convicted of violating § 2383, he would not be disqualified from serving a second term as President.

(Note: an earlier version appeared at Volokh Conspiracy, here.)

05/01/2021

David Pozen & Thomas Schmidt: The Puzzles and Possibilities of Article V
Michael Ramsey

David Pozen (Columbia University - Law School) and Thomas P. Schmidt (Columbia University - Law School) have posted The Puzzles and Possibilities of Article V (Columbia Law Review, forthcoming) (62 pages) on SSRN.  Here is the abstract:

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly specific and stringent constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but at least in the text itself we assume we can find some objective common ground.

This paper calls into question each piece of this standard picture of Article V. Neither the language nor the law of Article V supplies a determinate answer to a long list of fundamental puzzles about the amendment process. Legally questionable amendments have not been the exception throughout U.S. history; they have been the norm. After detailing these descriptive claims, the paper explores their doctrinal and theoretical implications. Appreciating the full extent of Article V’s ongoing ambiguity, we suggest, counsels a new approach to judging the validity of contested amendments, undermines some of the premises of originalism and textualism, and helps us to see new possibilities for constitutional change. Because the success or failure of attempted amendments turns out not to be exclusively or even primarily a function of following the rules laid out in the canonical document, all constitutional amending in an important sense takes place “outside” Article V.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!"

04/30/2021

Scott Boykin: Original-Intent Originalism
Michael Ramsey

Scott Boykin (Georgia Gwinnett College, Political Science) has posted Original-Intent Originalism: A Reformulation and Defense (Washburn Law Journal, Vol. 60, No. 2, 2021) (43 pages) on SSRN.  Here is the abstract:

Originalists emphasize constitutional text as a means of interpreting and applying provisions of the Constitution to concrete issues. In the 1970s and 1980s, the first wave of originalists considered the intentions of the Framers as controlling for interpretation of constitutional text. Over time—and in part due to the critique of intentionalism that suggests we lack a reliable means of assessing the subjective intentions of all of those who adopted a particular constitutional provision—the focus of originalists shifted to the original public meaning of constitutional text. For reasons detailed below, I maintain that a focus on text, while critically important to constitutional interpretation, is inadequate by itself for faithfully interpreting the Constitution, particularly where its open-textured provisions, which are most often the subject of adjudication, are concerned. By intent, originalists mean what the Framers and Ratifiers sought to do by means of the Constitution’s provisions. It is the actions and results the Framers and Ratifiers sought to achieve that constitute their intent. It is insufficient to say, as Randy Barnett does, that the language to which the Ratifiers agreed constitutes the meaning of the Constitution. It is true that Madison said, which Barnett quotes him as saying, that the Ratifiers’ understanding of the Constitution should control its interpretation. The Ratifiers, however, were not simply voting on words, but on changes in action to be made and implemented in structure and policy, so that the actions of the national government would be different in some respects from what it had done before. The Framers and Ratifiers of the Constitution intended for certain purposes to be accomplished, and it is in those purposes that meaning must be sought.

04/29/2021

Frank Bowman: Why "Blanket Pardons" Are Unconstitutional
Michael Ramsey

Frank O. Bowman III (University of Missouri School of Law) has posted Why "Blanket Pardons" Are Unconstitutional (33 Federal Sentencing Reporter __ (2021)) (10 pages) on SSRN.  Here is the abstract:

In 1974, President Gerald Ford pardoned former President Richard Nixon for "all offenses against the United States" committed during both his terms of office. This pardon, unique in American history, was not limited even to offenses of which President Ford then had knowledge. At the close of the Trump Administration, it was speculated that Mr. Trump might issue similar "blanket pardons" to family, friends, or political supporters. He did not, so far as is now known. But he might have issued secret pardons of that breadth, or a future president might do so.

Accordingly, this paper examines the constitutionality of "blanket pardons" for all federal offenses, known and unknown. It examines the constitutional text, as well as British and American legal history, and concludes that, despite the Ford-Nixon precedent, such pardons exceed the president's authority under the Pardon Clause.

The president's pardon power is broad indeed, and is not constrained by a rigorous specificity requirement. However, as a matter of text, history, and sound constitutional policy, the act of pardoning requires that a president be aware of the basic character of the offenses to be pardoned and the identity of the person or class of persons who will be beneficiaries of a pardon. Without such knowledge, the judgment that is a prerequisite to an award of clemency cannot occur. A pardon for all federal offenses, regardless of whether the pardoning president is aware of even their general character, is therefore impermissibly broad.

04/28/2021

New Originalism Center at Catholic University Columbus School of Law
Michael Ramsey

Via Ed Whelan at NRO Bench Memos: New Project for Constitutional Originalism and the Catholic Intellectual Tradition.  From the press release from Catholic University

The Catholic University of America Columbus School of Law received a $4.25 million gift to establish The Project for Constitutional Originalism and the Catholic Intellectual Tradition. 

Made by an anonymous trust, the gift establishing the project is intended to create an intellectual center for the study of how the United States Constitution’s original, distinctly American vision of ensuring the protection and flourishing of the human person emulates important aspects of the Catholic intellectual tradition.  

Using the lens of U.S. history, culture, and originalism scholarship, affiliated faculty and students will study the compatibility of the Constitution and Catholic thought over a wide range of constitutional issues. The project will foster consideration of the nature of the human person and the structures of civil society that the Constitution seeks to protect and allow to flourish, as well as the peculiarly American approach to government, political life, and the common good expressed in the Constitution, key founding documents, and originalist jurisprudence.

RELATED:  Also via Ed Whelan, Joel Alicea -- whose work has been highlighted on this blog -- has joined the Catholic University law school faculty.  From the press release

Catholic Law is excited to welcome Joel Alicea as the newest member of the faculty. “Being Catholic myself, I was drawn to the mission of the University and the great tradition of Catholic legal thought. From Aquinas to More to numerous modern scholars, the Church has contributed some of the greatest minds to the study of law, and many of the concepts that are central to modern legal systems owe much to that tradition. It is an honor to be part of that intergenerational conversation in my own small way.”

Alicea previously worked for several years at the law firm of Cooper & Kirk, PLLC, where he specialized in constitutional litigation. He previously served as a law clerk for Justice Samuel A. Alito, Jr., on the United States Supreme Court and for Judge Diarmuid F. O'Scannlain on the United States Court of Appeals for the Ninth Circuit. Joel's scholarship has focused on constitutional theory. He has been published in such places as the University of Pennsylvania Journal of Constitutional Law and the Harvard Journal of Law & Public Policy. He has also been active in public debates, publishing essays in journals such as National Affairs and The Public Discourse. Alicea’s interest in constitutional law can be traced to his undergraduate coursework at Princeton University—particularly Constitutional Interpretation and American Civil Liberties, both taught by Professor Robert P. George. “I found both courses engrossing; they were intellectually electrifying. Constitutional law has been my primary academic interest ever since.”

04/27/2021

Thank You to University of Chicago Press For Correcting William Blackstone’s Warning
Andrew Hyman

I would like to publicly thank David Olsen and Brendan Carrick of the University of Chicago Press for correcting a misquote of William Blackstone in the web edition of The Founders’ Constitution.  This error may seem like a small mistake, but actually it turned Blackstone’s meaning on its head.  When I pointed it out, they fixed it, so three cheers for U. Chicago. 

In his famous Commentaries, Blackstone warned that, if the executive or the judiciary were allowed to control procedural law, then parliament would eventually lose control of substantive law too.  Here is what Blackstone wrote (emphasis added):

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be no inlet to all manner of innovation in the body of the law itself.

Unfortunately, there was a typographical error here, but Blackstone was astute, caught the error, and included it in the list of corrections at the front of his book.  The corrected version of Blackstone’s warning is as follows (emphasis added):

Not only the substantial part, or judicial decisions, of the law, but also the formal part, or method of proceeding, cannot be altered but by parliament: for if once those outworks were demolished, there would be an inlet to all manner of innovation in the body of the law itself.

Of course, Blackstone’s warning has been disregarded here in America, and the vehicle for disregarding it has been the Due Process Clause.  In England, that clause simply meant that deprivations of liberty "must be by a legal authority” (per Justice Powys in Regina v. Paty, 92 Eng. Rep. 232, 234 (K. B. 1704)).  Here in America, the judiciary’s first big step in expanding that meaning was Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. 272 (1856).  There, the Supreme Court stated that the Due Process Clause “is a restraint on the legislative, as well as on the executive and judicial, powers of the government, and cannot be so construed as to leave Congress free to make any process ‘due process of law,’ by its mere will.”  The Court conveniently overlooked that the Due Process Clause already plainly prohibited Congress from releasing the other branches from the ancient principle that deprivations of liberty must be by a legal authority. 

To solve the nonexistent problem of applying the Due Process Clause against Congress, the Court in Murray’s Lessee proclaimed that all federal legislation must comply with “those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country.”  To lawyers less prescient than William Blackstone, this rule from Murray’s Lessee would have been no cause for alarm, assuming the Court would stick to the historical approach that it announced in 1856, but the Court eventually meandered toward more subjective considerations, e.g. what shocks the Court’s conscience, or what seems fundamental to five of nine justices.  Even then, a typical American lawyer would not have been alarmed at the Court's purely procedural rulings, although courts have found ample ways to use procedural hurdles to undermine substantive law.  As Blackstone predicted, the outworks lay in ruins after 1856, leaving instead an inlet “to all manner of innovation in the body of the law itself.” 

Nowadays, we have a name for the inlet to which William Blackstone referred: “substantive due process.”  The framers of the Fourteenth Amendment did not see it coming; as Sixth Circuit Judge John Bush explained recently (quoting Michael McConnell and Nathan Chapman): “[n]o significant court decision, legal argument, or commentary prior to the adoption of the Fourteenth Amendment . . . so much as hinted that due process embodies the principle that certain natural liberties are inviolate against any laws.”  That’s correct, and I would include the Dred Scott decision in that category.  

Maybe it was always inevitable that Blackstone's warning would go unheeded in America, per the ancient maxim "Boni Judicis Est Ampliare Jurisdictionem."  That maxim, which means the duty of a good judge is to enlarge his jurisdiction, is a crummy maxim, and unconstitutional too.  But the maxim does perfectly describe human nature.

CORRECTION:  This post has been updated to reflect the correct author.

William Haun & Daniel Chen on Freedom of Assembly
Michael Ramsey

At Law & Liberty, William J. Haun and Daniel L. Chen: Where Two or Three Are Gathered (discussing Americans for Prosperity Foundation v. Rodriguez, argued to the U.S. Supreme Court on Monday).  Here is the introduction: 

... The [Americans for Prosperity] case involves two California non-profits challenging the state’s requirement that they—and every other non-profit registered in California—disclose their donors to make future law enforcement more “effective” and “efficient.” Over 40 amicus briefs lambasted this embrace of open-ended government surveillance—reflecting an ideological agreement so wide that NARAL Pro-Choice North Carolina and Wisconsin Right to Life joined the same brief. On the surface, widespread consensus in favor of associational privacy is surely welcome. But this agreement masks equally widespread, decades-long confusion over how and why the Constitution protects free association.

As the brief filed by our firm—the Becket Fund for Religious Liberty—explains, that confusion is at the core of this case, and solving it requires regrounding the right of “expressive” association at issue in the text, history, and tradition of the First Amendment’s Assembly Clause. The freedom of assembly has deep historical roots in religious assembly. This history confirms that, despite modern law’s recent emphasis on “expressive” association, assemblies do not exist simply, or even primarily, for expressive purposes. Rather, they exist primarily for formative ones. Shaping people in beliefs, traditions, rituals, customs, and ways of life—regardless of how politically “expressive” they are—requires a robust space outside the individual and the state for the freedom of assembly.

But the Supreme Court has yet to appreciate the formative core of association, nor has it clearly rooted the right of association in any constitutional provision. The result has been short shrift to the Constitution’s protection of civil society.

This case provides the Supreme Court with an ideal opportunity to reground free association in the Assembly Clause and recognize that assemblies do not simply allow individuals to express themselves. Rather, they form citizens in the virtues that make and sustain self-government.

04/26/2021

More on Michael Dorf’s “Originalism’s Discontinuity Problem”
David Weisberg

With regard to Professor Dorf’s post “Originalism’s Discontinuity Problem,” I agree with Professor Ramsey that discontinuity is no particular problem for originalism.  (Nor is it a particular problem for constitutional textualism.)   But I would add one additional point.  Professor Dorf writes:

Justice Scalia…wrote…that stare decisis is an exception to originalism and textualism, adding…that it is likewise an exception to every theory of interpretation. He was right about originalism but that addition about other theories and methods is wrong. Stare decisis is not an exception to modes of statutory and constitutional interpretation that place precedent at their core—like Dworkin's law as integrity or Strauss's common law constitutionalism. If you build your theory based on precedent, then you will still sometimes have line drawing problems, but you won't have whole bodies of inconsistent law directly adjacent to one another[.]

I submit that, if precedent is made the “core” of constitutional interpretation—if a theory of constitutional interpretation is “buil[t]” and “based” on precedent—courts will be stuck with the consequences of previous legal decisions that, viewed from a more contemporary perspective, might deserve to be overturned.  If, e.g., the US Supreme Court always had a majority of justices who considered precedent to be the “core” of proper constitutional interpretation, the de jure racial segregation approved in Plessy vFerguson would still be constitutional, Lochner vNew York would to this day invalidate statutes that “interfere” with the liberty of person and right of free contract, and, under Bowers vHardwick, States could currently criminalize consensual sodomy.  Unswerving fidelity to precedent precludes the correction of results that, over time, might come to be seen as blatantly erroneous.       

Robert Gomulkiewicz: The Supreme Court's Chief Justice of Intellectual Property Law
Michael Ramsey

Robert W. Gomulkiewicz (University of Washington - School of Law) has posted The Supreme Court's Chief Justice of Intellectual Property Law (Nevada Law Journal, Vol. 22, 2022 forthcoming) (63 pages) on SSRN.  Here is the abstract:

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions which call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as one of the most prolific authors of patent law opinions in the history of the Supreme Court. Thus, at a time when intellectual property has become one of America’s most important assets, Justice Thomas has played an important role in the evolution of America’s innovation law and policy.

This article is the first to highlight the significance of Justice Thomas’s intellectual property jurisprudence. It considers how Justice Thomas emerged as the Roberts Court’s “chief justice” of intellectual property law, authoring more majority opinions than even colleagues known for their intellectual property law prowess. The article analyzes Justice Thomas’s key intellectual property opinions to understand their importance. It also highlights the distinguishing features of these opinions, including their faithful adherence to textualism, appreciation for the role of remedies, attention to technological and business context, awareness of the impact on intellectual property practitioners, and surprising unanimity. The article concludes that Justice Thomas’s deep respect for the constitutional separation of powers is at the heart of his intellectual property jurisprudence, as his opinions invite and sometimes nudge Congress to play its leading role in crafting intellectual property law.

04/25/2021

Stéphane Sérafin et al.: The Common Good and Legal Interpretation
Michael Ramsey

Stéphane Sérafin (University of Ottawa), Kerry Sun (Sullivan & Cromwell LLP) and Xavier Foccroulle Menard (Norton Rose Fulbright Canada LLP) have posted The Common Good and Legal Interpretation: A Response to Leonid Sirota and Mark Mancini (Constitutional Forum, Vol. 30 No. 1 (2021) 39-54) (16 pages) on SSRN.  Here is the abstract: 

Recent debates in the United States and Canada bear witness to a renewed interest in the moral foundations of legal interpretation. This article offers a contribution to the ongoing debate in Canadian legal circles, responding to critiques by Leonid Sirota and Mark Mancini of the emergent theories of “common good originalism” and “common good constitutionalism”. Contrary to our interlocutors’ view, the natural law tradition does not “look to extraneous moral and policy commitments as guides for legal interpretation” nor does it see the law as a mere instrument to achieve “pre-determined outcomes.” Rather, it regards the positive law and natural law as reciprocally interrelated; natural law lends intelligibility to the positive law, while positive law makes concrete the abstract precepts of natural law. This perspective provides valuable insights into the activity of legal interpretation, as directed toward understanding and giving effect to the legislature’s reasoned choices for the common good.

And here's the introduction, which is helpful in describing the arguments to which the paper is responding (footnotes omitted):

A renewed interest in the moral foundations of legal interpretation in the United States is increasingly reverberating in Canada. For example, on February 22, 2021, Leonid Sirota and Mark Mancini published a post on the Double Aspect Blog entitled “Interpretation and the Value of Law” (“IVL I”). Although the post itself merely claimed to show “[w]hy the interpretation of law must strive for objectivity, not pre-determined outcomes,” the timing of the piece implies that it was meant to respond specifically to Josh Hammer, the Newsweek correspondent and constitutional lawyer, who has recently proposed a framework of “common good originalism” to correct the perceived failures of the originalist framework applied by Justice Gorsuch of the US Supreme Court in Bostock.

This is an argument that Sirota and Mancini appear to perceive as a threat to their preferred paradigm — textualism in statutory interpretation, originalism in constitutional matters — on the grounds that it introduces “substantive political content” into the law. Since then, Sirota and Mancini have published a further blog post, entitled “Interpretation and the Value of Law II” (“IVL II”), which purported to respond to the arguments we advanced in an earlier version of this article.  While the subsequent post clarified our interlocutors’ position on a number of issues, many of our initial arguments remain unaddressed.

Separately, our initial response to Sirota and Mancini prompted another comment by Asher Honickman, calling for a more robust contextual approach within an ostensibly positivist, textualist framework. As Honickman observed, “[t]here is a lively debate afoot in legal circles, both in the United States and now in Canada, on the ‘common good’” and its relation to juristic activity. In this article we reprise and elaborate upon our arguments, in light of the subsequent responses by our interlocutors. Specifically, we argue that, to the extent that Sirota and Mancini’s posts in IVL I and II should be read as a response to Hammer, they misunderstand his position as a threat to originalism. Sirota and Mancini’s proffered critique of “common good originalism” misses the mark, we suggest, because they confuse Hammer’s broadly positivist “common good originalism” with the quite different arguments advanced by Harvard law professor Adrian Vermeule, whom they explicitly criticized in IVL I as favouring an approach that “look[s] to extraneous moral and policy commitments as guides for legal interpretation.” 

That said, we also object to Sirota and Mancini’s characterization of the alternative natural law position they ascribe to Vermeule and others. Whatever else can be said about the ultimate merits of this jurisprudential tradition, proper natural law theories do not constitute a form of legal realism, as Sirota and Mancini appear to believe. That is to say, these theories do not regard legal reasoning or adjudication as mere instruments to achieve “pre-determined outcomes.”

04/24/2021

Jamey Anderson: The Nondelegation Schism
Michael Ramsey

Jamey Anderson (University of Wisconsin Law School, J.D. candidate) has posted The Nondelegation Schism: Originalism Versus Conservatism (Wisconsin Law Review, forthcoming) (38 pages) on SSRN.  Here is the abstract:

The Supreme Court appears poised to breathe new life into the nondelegation doctrine, a judicially created theory of constitutional law that Congress may not delegate its legislative power to the executive or any other entity. Scholars have long criticized the nondelegation doctrine as poorly defined, unsupported by constitutional text and history, and impossible to implement without a major expansion of the judicial role. This Comment adds to this scholarship by arguing that the conservative majority’s proposed nondelegation revival is best understood not as the resurrection of a unified theory but rather as two distinct doctrinal inventions reflecting the ideological commitments of their chief proponents. Whereas Justice Gorsuch fashions an originalist standard from cases taken from before the New Deal era, Justice Kavanaugh applies a modern functionalist test to invalidate major rules disfavored by conservative policymakers. Though the justices appear eager to blend their approaches, they are in fact fundamentally incompatible. Indeed, the facts of Justice Gorsuch’s old cases largely fail Justice Kavanaugh’s test. This rift is more than academic, as the two standards produce different results in a contested area of regulatory law—federal greenhouse gas limits. This finding suggests that supporters of the modern administrative state should focus not just on whether the nondelegation doctrine is revived but also on what form it takes. How the Court resolves the conflicting demands of originalism and conservatism may offer an early look at a theme likely to define the new conservative majority.

04/23/2021

Fordham Symposium on "The Federalist Constitution"
Michael Ramsey

Recently published, in the Fordham Law Review: a symposium on "The Federalist Constitution."  I've linked to some of these papers before, but they are especially impressive listed all together:

Foreword, by David S. Schwartz, Jonathan Gienapp, John Mikhail, & Richard Primus

Two Federalist Constitutions of Empire, by Gregory Ablavsky

Without Doors: Native Nations and the Convention, by Mary Sarah Bilder

President Madison’s Living Constitution: Fixation, Liquidation, and Constitutional Politics in the Jeffersonian Era, by Saul Cornell

In Search of Nationhood at the Founding, by Jonathan Gienapp

Slavery’s Constitution: Rethinking the Federal Consensus, by Maeve Glass

The Federalist Constitution as a Project in International Law, by David M. Golove & Daniel J. Hulsebosch

The Unwritten Constitution for Admitting States. by Roderick M. Hills Jr.

Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787-1792, by Thomas H. Lee

Executive Power and the Rule of Law in the Marshall Court: A Rereading of Little v. Barreme and Murray v. Schooner Charming Betsy, by Jane Manners

Equal Footing and the States “Now Existing”: Slavery and State Equality over Time, by James E. Pfander & Elena Joffroy

Reframing Article I, Section 8, by Richard Primus

The Other Madison Problem, by David S. Schwartz & John Mikhail

Presidential Removal: The Marbury Problem and the Madison Solutions, by Jed Handelsman Shugerman

I expect there's a lot here I don't agree with, but also a good bit that I do.

Thanks to Saul Cornell for the pointer.  Also, at Balkinization, Richard Primus comments

This week, the Fordham Law Review published a symposium called The Federalist Constitution.  The central impetus for the symposium, as explained in a brief Foreword (co-written by four of the symposium's organizers), is that the picture of the Founding that dominates constitutional law tends to be one shaped through the lens of the antifederalists and Democratic-Republicans who resisted the original pro-Constitution Federalists, rather than one that takes the ideas of those Federalists seriously enough on their own terms.  The symposium aims to correct this picture by asking how the Federalists thought about the Constitution in their own time.

04/22/2021

Kurt Lash Guest-Blogging on his "The Reconstruction Amendments: The Essential Documents"
Michael Ramsey

At Volokh Conspiracy, Kurt Lash is guest-blogging on his edited 2-volume set The Reconstruction Amendments: The Essential Documents (Univ. of Chicago Press 2021).  Here are his posts so far:

The Reconstruction Amendments: Essential Documents, a Follow-up to The Founders' Constitution

"The Reconstruction Amendments: Essential Documents," Vol. 1: The Antebellum Constitution and The Thirteenth Amendment

Framing and Ratifying the Fourteenth and Fifteenth Amendments: "The Reconstruction Amendments: Essential Documents," Vol. 2

From the most recent post, on Vol. 2:

One of the most extraordinary moments in American constitutional history occurred on December 4, 1865. On this, the opening day of the Thirty-Ninth Congress, congressional Republicans made the extraordinary decision to refuse admission to representatives from the former Confederate States. The bewildered southern representatives were left standing in the aisles, their pleas to be recognized by the Chair ignored. Republicans instead proceeded to create the Joint Committee on Reconstruction and tasked it with determining the constitutional changes that had to be made before the Union could safely allow the return of the former rebel States.

Thus began a constitutional drama that would not be complete until after the passage of two more constitutional amendments. The Fourteenth Amendment would solve the problem of southern state representation created by the ratification of the Thirteenth Amendment and define the scope of post-bellum constitutional liberty. The Fifteenth Amendment would prohibit states from denying the right to vote on the basis of race.

At no point was it certain that either amendment would be passed, much less be ratified. The effort to pass the Fourteenth Amendment almost failed, and its ratification triggered a second civil war (one between Republicans and Democrats). It took the impeachment of an American President and the enforcement of the Reconstruction Acts before ratification was assured. Passing Fifteenth Amendment almost failed due to procedural chaos between the two houses of Congress, and securing its ratification involved kicking a readmitted state out of the Union.

The newly published collection of original historical documents, The Reconstruction Amendments: Essential Documents, Volume Two presents the historical record of this remarkable, and remarkably public, constitutional event. The documents include the key congressional speeches and debates, state ratification debates and reports, newspaper essays, campaign speeches and documents, and efforts by women's suffrage advocates and black civil rights organizations to shape the scope and content of constitutional reconstruction.

Unlike the secret Philadelphia Constitutional Convention debates of 1787, the debates over the framing of the Fourteenth and Fifteenth Amendments were open to the public. Newspapers published transcripts of the speeches and debates on a daily basis and politicians circulated their speeches in pamphlet form as campaign documents. In short, members of the public could follow the arguments supporting or opposing proposed amendments, arguments that included lengthy debates over the scope of the Thirteenth Amendment, the privileges and immunities of national citizenship, the natural rights of all persons and the nature and limits of federal power.

04/21/2021

Michael Dorf on Originalism and Discontinuity (With my Response)
Michael Ramsey

At Dorf on Law, Michael Dorf: Originalism's Discontinuity Problem (criticizing Judge John Bush's opinion in Pre-Term Cleveland v. McCloud, discussed here).  Professor Dorf makes several interesting points, the most important of which is this:

I come now to [Judge Bush's] point (2) [that "where a case presents a constitutional question of first impression, a lower court judge should apply the Constitution's original public meaning"] ...  Suppose that SCOTUS precedent clearly establishes some rule X. Suppose further that rule X doesn't directly cover some new situation but that faithful application of the general principles giving rise to and compatible with X appear to cover the new situation. However, applying X here would lead to a result contrary to the original meaning of the underlying constitutional provision that the SCOTUS interpreted using nonoriginalist methods to derive X. Under these circumstances, Judge Bush says that an originalist lower court judge like himself should apply the original meaning rather than "extend" X.

But here's the thing. Anyone who has sat through even the first few weeks of law school knows that there is no sharp distinction between "applying" a precedent and "extending" one. The whole enterprise involves figuring out how far the rationale of one rather than another rule or standard applies and going that far but no further. Lines need to be drawn, and they are sometimes arbitrary, but if one draws lines with care and attention to the underlying policy rationales, one can smooth over the boundaries between one rule or standard and another. That's nearly impossible to do if a rule or standard abruptly cuts off when a judge determines that some new case would involve its "extension" rather than its "application" and therefore the case is governed by the wholly different purported original meaning of the constitutional text.

For example, courts would sensibly construe the First Amendment's Establishment Clause to forbid the use of taxpayer money to purchase King James Bibles and distribute them to every public school child. Courts also would sensibly construe the First Amendment's Free Exercise Clause to require that a public fire department put out fires at churches no less than at movie theaters. So some kinds of taxpayer subsidies for religion are impermissible; others are effectively required. In between there may be subsidies that are permitted but not required. The dividing lines will need to be drawn with sensitivity to a variety of considerations. It's possible to do that if you pay attention to the underlying interests. It's much harder to do that if you have one regime based on precedent and an adjacent regime based on a completely different view based on (supposed) original meaning. And there is nothing special about that set of examples.

Justice Scalia partially recognized this problem. He wrote (both by himself in A Matter of Interpretation and with Bryan Garner in Reading Law) that stare decisis is an exception to originalism and textualism, adding (in both places) that it is likewise an exception to every theory of interpretation. He was right about originalism but that addition about other theories and methods is wrong. Stare decisis is not an exception to modes of statutory and constitutional interpretation that place precedent at their core--like Dworkin's law as integrity or Strauss's common law constitutionalism. If you build your theory based on precedent, then you will still sometimes have line drawing problems, but you won't have whole bodies of inconsistent law directly adjacent to one another--as you do if you follow the approach Judge Bush advocates.

It is bad enough that originalists don't have a solution to the discontinuity problem. What's worse, as Justice Scalia's writings and Judge Bush's recent concurrence illustrate, they don't even appear to be aware of the special problem their methodology creates.

My response: I don't see a problem here. 

First, discontinuities abound in law.  Judges routinely decline to extend (i.e., read narrowly) cases they don't agree with on policy grounds, and commentators routinely encourage them to do so.  True, there's a fuzzy line at times between applying and extending (and maybe, as Professor Dorf says earlier in the post) Judge Bush was on the wrong side of that line in McCloud.  But that observation doesn't invalidate the enterprise of declining to extend cases with which one disagrees (for whatever reason).  So I don't see why this is a special problem for originalists. 

Second, I don't see why discontinuity is a problem at all.  There are lots of areas of law where there are special rules that exist because of some historical peculiarity.  Law isn't a seemless web.  So what?  We handle it well enough -- we just say, this area of law has some historical oddities.  The idea that there must be a single, all-encompassing unity to law seems quite unrealistic (and quite nineteenth-century).  Thus, again, there's no particular problem for originalism.  It's actually a pretty easy explanation to say: there are some historical oddities in this area of law because the Court went off the originalist rails at some point, but we declined to extend those rulings.

Here's an example from my article about federal common law and the original meaning of the supremacy clause.  In the Sabbatino case, the Court held that the common law act of state doctrine was actually a part of constitutionally preemptive federal common law that displaced even unambiguous contrary state law.  (The act of state doctrine holds that courts generally will not judge the validity of the acts of foreign states done in their own territory).  Sabbatino's rationale for giving it preemptive effect had to do with the federal government's supposed exclusivity in foreign affairs.  Let's assume the Court was wrong about the preemptive effect of the act of state doctrine as an originalist matter (as I argue in the article) but also assume that for stare decisis reasons we want to preserve the Sabbatino holding.  Some courts and commentators argue that the Sabbatino case should be read to establish a broad constitutional preemption of state laws that implicate foreign affairs.  But I say that (assuming Sabbatino was wrong as an original matter) it should not be extended to matters other than the act of state doctrine itself.

Maybe this result creates a "discontinuity" in Professor's Dorf's terms, in the sense that state laws implicating the act of state doctrine are preempted and state laws implicating other foreign affairs matters are not, without any explanation other than (a) Sabbatino was wrongly decided, and (b) we're keeping it (but reading it narrowly) and not extending it.  But again, so what?  That seems like a good enough explanation to me.  I don't see the problem.

I agree with Professor Dorf to this extent:  First, it won't do to "refuse to extend" a past case based on some immaterial difference in the new case.  For example, Sabbatino was about the acts of Cuba.  I wouldn't say that we should refuse to extend it to the acts of other foreign sovereigns.  Nothing about the historical act of state doctrine turned particularly on Cuba; it was a general rule.  Second, what counts as an "immaterial difference" may be subject to dispute in some cases (thus the fuzzy line between "applying" a case and "extending" a case).  But again, the existence of some uncertainty at the margins doesn't negate the whole enterprise.

04/20/2021

Judge Andrew Oldham: Official Immunity at the Founding
Michael Ramsey

Judge Andrew Oldham (United States Court of Appeals, Fifth Circuit) has posted Official Immunity at the Founding (28 pages) on SSRN.  Here is the abstract:

It is unclear to me that originalists’ qualified-immunity debate is framed in the correct terms. Or that it is framed in the correct time period. The current debate turns on whether officers enjoyed common-law tort immunities in 1871, when Congress passed the Enforcement Act that today appears in 42 U.S.C. § 1983. I wonder whether the more appropriate question is whether officers enjoyed constitutional immunities in 1791, when the People ratified the Bill of Rights. And I wonder whether historical pleading practices—embraced in English common law and by our first Congresses—mean the answer is “yes.”

This Article challenges the premises of the current debate by considering the archetypal qualified-immunity case: a Fourth Amendment plaintiff’s claim against an officer who allegedly executed an “unreasonable” search or seizure. In 1791, the word “unreasonable” meant “against the reason of the common law.” And that common law brought with it a host of immunities for officers charged with searching and seizing. Thus, it is possible that a Fourth Amendment claim at the Founding required plaintiffs to show that an officer’s search or seizure was not only wrongful but so wrongful that the plaintiff could overcome the officer’s common-law immunities. If that is correct, then today’s originalist critics of qualified immunity must broaden their focus and shift their debate.

04/19/2021

Alternative Grounds for Gonzales v. Carhart
Andrew Hyman

The U.S. Supreme Court is currently deciding whether to grant certiorari in the very cert-worthy abortion case of Dobbs v. Mississippi, as I mentioned here on this blog in February.  This month, Ed Whelan again cogently urged that cert be granted in that case.

While we’re on this (grisly) subject, I’d like to discuss the Court’s 2007 decision in Gonzales v. Carhart, upholding the federal Partial-Birth Abortion Ban Act of 2003. That Act probably overstretched the Interstate Commerce Clause.  As Justice Thomas wrote in his Gonzales v. Carhart concurrence, joined by Justice Scalia, “I ... note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it.”  

Had the scope of the Interstate Commerce Clause been before the Court in Gonzales v. Carhart, the 2003 Act’s attempted ban on a certain type of abortion may well have failed to pass muster, given that abortion does not necessarily involve interstate commerce.  As Professor Glenn Reynolds has noted, “the performance of an abortion in a local clinic is commerce among the states only if you adopt an unjustifiably expansive reading of the Commerce Clause that supports near-unlimited government power.”  The 2003 Act explicitly requires a link between commerce and abortion (“in or affecting interstate or foreign commerce”), and therefore the 2003 Act essentially bans a null set of “partial birth abortions.”

Perhaps Congress could have legitimately banned surgical chemicals, instruments, and components usable during “partial birth abortion” from entering into any state where “partial birth abortion” was legal, and perhaps Congress could have additionally banned people from producing such chemicals, instruments, and components from scratch entirely within their own state (under logic similar to that used by the Court in the marijuana case of Gonzales v. Raich).  But a ban like that would have affected a very broad range of surgeries other than abortion, because of the dual-use nature of the relevant chemicals, instruments, and components.  Therefore, Congress did not attempt such a broad ban in 2003, and instead purported to instruct people in each state how to use items that had already legitimately moved in interstate commerce, much as Congress’s Gun Free School Zones Act had purported to instruct people where to carry guns that had already legitimately moved in interstate commerce.  Under the misbegotten logic of the GFSZA, Congress could overturn just about any law in any state for any reason.

And that brings me to an alternative rationale for at least part of the federal Partial-Birth Abortion Ban Act of 2003.  The Equal Protection Clause may well authorize that 2003 Act, insofar as it applies to viable human beings, on the assumption that the framers of the Fourteenth Amendment (during the 1860s) understood personhood to be independent of where a human being is located, so that if one living human being of a certain size is a “person” then so is any other living human being of that exact same size.  This alternative rationale for upholding the 2003 Act seems valid under both current Equal Protection doctrine, as well as my more idiosyncratic view of that clause.  SCOTUS has never yet said that Fourteenth Amendment personhood has kicked in by viability, but they have never said it hasn’t either, and to my mind the former seems more plausible than the latter, for the reasons outlined above.  I am not suggesting that SCOTUS would or should defer to Congress on this question, for purposes of the Fourteenth Amendment, only that SCOTUS itself should say when it thinks constitutional personhood has started.

I do not, however, agree with those who suggest that the Equal Protection Clause could be used to protect human beings before viability, because states do not typically protect any born human beings that are so small.  Still, personhood is not a sensible prerequisite for state legislation protecting a pre-viable fetus, any more than personhood is a sensible prerequisite for state legislation protecting animals from cruelty, or protecting corpses from mutilation.  

I hope that courts will not hesitate to ensure that state and federal legislators are able to address the important and deeply-felt issues surrounding abortion.  Legitimate legislative powers cannot be permanently and mistakenly abridged, without establishing an extra-constitutional judicial power to make, perpetuate, and enlarge judicial errors.  One of those errors could and should be reviewed in the Dobbs case.

Gabriel Chin & Paul Finkelman: Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation
Michael Ramsey

Gabriel Jackson Chin (University of California, Davis - School of Law) and Paul Finkelman (Gratz College; Albany Law School) have posted Birthright Citizenship, Slave Trade Legislation, and the Origins of Federal Immigration Regulation (UC Davis Law Review, Vol. 54, 2021) (70 pages) on SSRN.  Here is the abstract:

In accord with the traditional restriction of citizenship of nonwhites, for decades some conservative lawmakers and scholars have urged Congress to deny citizenship to U.S.- born children of unauthorized migrants. For its part, the Trump Administration has promised to pursue birthright citizenship “reform.” The most prominent and compelling argument that Congress can deny citizenship by statute notwithstanding the citizenship clause of the Fourteenth Amendment comes from Citizenship Without Consent, a book authored by Yale Law Professor Peter Schuck and then-Yale Political Science Professor Rogers Smith. They argue that there was no federal exclusion or deportation in 1868 and thus the Fourteenth Amendment simply did not contemplate the citizenship of children of the then non-existent category of “illegal aliens.” Hundreds of law review articles, op-eds, white nationalist listservs, congressional hearings, and bills have embraced this argument, often citing Citizenship Without Consent.

This article is the first to examine the law regulating, suppressing, and banning the African slave trade to demonstrate, contrary to Citizenship Without Consent, that throughout the period leading up the Civil War and the adoption of the Fourteenth Amendment, the United States had both immigration laws and unauthorized migrants in the modern sense. First, the slave trade laws used immigration regulation techniques, including interdiction, detention, and deportation. Second, they were designed to exclude undesirable migrants and shape the nation’s population. Persons trafficked illegally could be and were deported, but, as Congress well knew, some were successfully smuggled in the country and remained here. Because the children of unauthorized migrants born in the United States were unquestionably made citizens by the Fourteenth Amendment, any modern statute denying citizenship to the children of undocumented migrants would be unconstitutional. In addition, scholars must consider the slave trade laws as part of the origins of federal immigration regulation.

Compare my view on Fourteenth Amendment birthright citizenship, which is not inconsistent with this paper as to the outcome -- but I am skeptical nonetheless that the drafters or ratifiers had illegally imported slaves in mind in enacting the Amendment.  Among other things, strictly speaking the people actually imported illegally would not have been citizens under the Amendment, and I don't think anyone thought about this point at the time.

04/18/2021

John Mikhail: McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause
Michael Ramsey

John Mikhail (Georgetown University Law Center) has posted McCulloch v. Maryland, Slavery, the Preamble, and the Sweeping Clause (Constitutional Commentary, forthcoming) (16 pages) on SSRN.  Here is the abstract:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” This famous passage in McCulloch v. Maryland can be read in at least two different ways. On a narrow reading, the ends in question are Congress’s enumerated powers, and the means to which the passage refers are whatever incidental powers are given by the first half of the Necessary and Proper Clause (the “foregoing powers” provision) to carry those enumerated powers into execution. On a broad reading, these ends also include the six great objects of the Preamble, and the means to achieve these purposes include all of the express and implied powers to which the second half of the Necessary and Proper Clause (the “all other powers” provision, aka “the Sweeping Clause”) refers.

This extended review of David Schwartz’s masterful new study of McCulloch (“The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland”) [ed.: Oxford University Press 2019, available here] shines a spotlight on the second, broader reading of the “Let the end be legitimate” passage, focusing on what happened to its robust conception of implied powers during five key episodes of the early Republic:

(1) The Virginia Ratifying Convention (1788);
(2) Congressional debates over constitutional amendments (1789);
(3) Congressional debates over abolition petitions (1790);
(4) Congressional debates over a national bank (1791); and
(5) United States v. Fisher (1805), the Marshall Court’s first Necessary and Proper Clause case.

Like Thomas Jefferson, James Madison, and other elite Virginians whose wealth rested on human bondage, John Marshall probably did not believe, or at any rate was unwilling to accept, that Congress could abolish slavery—even though he knew that a plausible interpretation of the Preamble and Sweeping Clause justified that conclusion. Likely for that very reason, his defense of implied powers in McCulloch was deliberately ambiguous.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended, and much more than just a review... Download it while it's hot!"

NOTE:  For a different take on Professor Schwartz's book from Nelson Lund (George Mason - Scalia), plus my one-paragraph originalist assessment of McCulloch, see here.

04/17/2021

Lower Court Originalism from Judge John Bush
Michael Ramsey

Via Josh Blackman at Volokh Conspiracy, Judge John Bush's concurring opinion in Preterm Cleveland v. McCloud.  From the opinion (citing, among others, Judges Bumatay and Ho, as well as Professor Blackman):

When no holding of the Supreme Court can decide a question, as in the case before us, our duty to "interpret the Constitution in light of its text, structure, and original understanding" takes precedence. See NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring in the judgment); see also Pierre Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. Rev. 1249, 1274 (2006) ("The Supreme Court's dicta are not law. The issues so addressed remain unadjudicated. When an inferior court has such an issue before it, it may not treat the Supreme Court's dictum as dispositive." (emphasis added)). And if it is dubious whether a precedent "is correct as an original matter," we should "tread carefully before extending" it. Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas, J., dissenting); see also Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 N.Y.U. J. L. & Liberty 44, 51 (2019) ("[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension."). In such a case, "the rule of law may dictate confining the precedent, rather than extending it further." NLRB v. Int'l Ass'n of Bridge Iron Workers, Local 229, 974 F.3d 1106, 1117 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc); see also Texas v. Rettig, No. 18-10545, slip op. at 18 (5th Cir. Apr. 9, 2021) (Ho, J., dissenting from denial of rehearing en banc) ("[I]f we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear.").

This view seems to be taking hold broadly among newer court of appeals judges, with Judge Bumatay as one of the leaders.

(Somewhat related thoughts here from me, from a while back, on how to manage the relationship between originalism and precedent).

04/16/2021

Stephen Sachs Goes to Harvard
Michael Ramsey

I don't usually attach much importance to law professors changing schools, but this is sort of a big deal in the originalist community -- Stephen Sachs (currently at Duke) will be the inaugural Antonin Scalia Professor of Law at Harvard Law School, starting later this year. Professor Sachs is a well-known originalist scholar, author most recently of  Originalism: Standard and Procedure (forthcoming in the Harvard Law Review) (noted here).  From the Harvard press release:

Stephen E. Sachs, a leading scholar of civil procedure and constitutional law, will join the faculty of Harvard Law School as the inaugural Antonin Scalia Professor of Law, effective July 1.

Sachs, who is currently the Colin W. Brown Professor at Duke Law School, researches a range of subjects including the law and theory of constitutional interpretation, the jurisdiction of state and federal courts, and the role of the general common law in the U.S. legal system.

“Professor Sachs is a thoughtful, creative, and impactful [ed.: my spell checker doesn't think this is a word, and neither would Justice Scalia] scholar who has offered fresh ways of thinking about law and interpretation and about the structure and content of U.S. law,” said John F. Manning ’85, the Morgan and Helen Chu Dean and Professor of Law at Harvard Law School. “He is also a great teacher and colleague, and I am delighted that he is joining the HLS community.”

Said Sachs: “I am delighted to join the faculty of Harvard Law School, where I took my first law school class from Charles Donahue as a medieval history undergraduate, and where I spent many happy hours reading through old statutes in Langdell. I am particularly honored to serve as the inaugural Antonin Scalia Professor, in recognition of Justice Scalia’s legacy in the law.”

Harvard Law School established the Antonin Scalia Professorship of Law in 2017, in honor of the late U.S. Supreme Court Justice Antonin Scalia ’60. Known for his jurisprudence advancing originalism and textualism, Scalia served as an associate justice for 30 years until his death in 2016.

Congratulations to Professor Sachs!

(Via Brian Leiter's Law School Reports).

04/15/2021

Kurt Lash's "The Reconstruction Amendments: The Essential Documents"
Michael Ramsey

Recently published: The Reconstruction Amendments: The Essential Documents, edited by Kurt Lash (Richmond) (2 vols.) (University of Chicago Press 2021).  Here is the book description from Amazon:

Ratified in the years immediately following the American Civil War, the Thirteenth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution—together known as the Reconstruction Amendments—abolished slavery, safeguarded a set of basic national liberties, and expanded the right to vote, respectively. This two-volume work presents the key speeches, debates, and public dialogues that surrounded the adoption of the three amendments, allowing us to more fully experience how they reshaped the nature of American life and freedom.

Volume I outlines a broad historical context for the Reconstruction Amendments and contains materials related to the Thirteenth Amendment, which abolished slavery, while Volume 2 covers the Fourteenth and Fifteenth Amendments on the rights of citizenship and enfranchisement. The documents in this collection encompass a sweeping range of primary sources, from congressional debates to court cases, public speeches to newspaper articles. As a whole, the volumes meticulously depict a significant period of legal change even as they illuminate the ways in which people across the land grappled with the process of constitutional reconstruction. Filling a major gap in the literature on the era, The Reconstruction Amendments will be indispensable for readers in politics, history, and law, as well as anyone seeking a better understanding of the post–Civil War basis of American constitutional democracy.

(Via Gerard Magliocca at PrawfsBlawg).

04/14/2021

Eric Segall on First Amendment Originalism (with my Comments)
Michael Ramsey

At Dorf on Law, Eric Segall:  The Roberts Court, First Amendment Fanaticism, and the Myth of Originalism.  From the introduction: 

John Roberts became the Chief  Justice of the United States Supreme Court on September 29, 2005. This term will make the 15th anniversary of the Roberts Court. During that time some important constitutional doctrines stayed more or less the same (abortion and affirmative action) and others changed dramatically (the Spending Power,  the Second Amendment and voting rights). But by a large margin, the Roberts Court generally and the Chief personally have taken the first amendment's free speech clause and turned it into an aggressive tool to impose the Court's conservative values on the rest of us. As discussed below, the numbers are staggering and the consequences for our country immense. And virtually all of it has nothing at all to do with the original meaning of the United States Constitution.

According to a study by Ronald Collins and David Hudson, between 2005-2020, the Roberts Court decided 56 free speech cases. The Chief authored 15 majority opinions. The four liberals on the Court, Justices Ginsburg, Breyer, Kagan, and Sotomayor, cumulatively wrote a total of 15 free speech majority opinions. Retired Justice Anthony Kennedy, the swing vote from 2005-2018, wrote seven. The Chief wrote only one dissent in those 56 cases and joined two others. In 95% of these cases, Roberts was in the majority. He has been from the start, the "Free Speech Justice."

What kind of speech cases are we talking about? Has the Roberts Court been protecting political dissenters, racial justice protesters, and censorship warriors? Not so much. 

First, a number of these cases can only be explained by the flimsiest of constitutional rationales--the slippery slope. The Roberts Court invalidated a state law banning the sale of violent video games to children, a federal law banning depictions of animal cruelty, including so-called "crush videos" where animals are effectively tortured for sexual pleasure, and civil liability for the highly inflammatory speech of the Westboro Baptist Church, which protested near a military funeral through homophobic and other forms of hate speech. Whether these cases are right or wrong as a matter of policy, there is no plausible originalist basis for the decisions and the Court did not justify these cases on originalist grounds. The Founding Fathers were concerned with prior restraints on political speech and that's about all. As Jud Campbell has documented in an excellent Yale Law Journal article, the Court's robust free speech doctrines can only be justified by reference to living or common law constitutionalism. Yet, it should be noted that so-called originalist Justices Antonin Scalia and Clarence Thomas joined all three of these opinions (except Thomas dissented in the violent video games case)....

While I agree with some of the criticisms of specific cases later in the post, I think its general theme is faulty in several  respects.

(1)  Free speech rights under the First Amendment are especially (one might say uniquely) articulated through an elaborate doctrinal structure, much of which lacks originalist foundations.  It's an especially difficult area to navigate for an originalist judge who also has at least some respect for precedent.  The First Amendment cases the post describes are often instances of originalist Justices, when they join a majority, applying rather than fighting the prevailing doctrinal structure.  Thus I think the First Amendment is a particularly inappropriate area to search for purity in judicial originalism.  Moreover, the three cases noted in the post's introduction -- Brown v. Entertainment Merchants [violent video games]; U.S. v. Stevens [animal cruelty]; and Snyder v. Phelps [Westboro protests] were not the product of contested doctrinal reinterpretations by conservative justices.  Justices Kagan, Ginsburg and Sotomayor joined Scalia's opinion in Brown; Justices Ginsburg, Breyer and Sotomayor joined Robert's opinion in Stevens; and Justices Breyer, Ginsburg, Sotomayor and Kagan joined Roberts' opinion in Snyder.  The Roberts Court's support for free speech in these cases was decidedly a bipartisan matter.

(2) The post depends on a version of the First Amendment's original meaning that is highly contested.  Professor Segall writes: "The Founding Fathers were concerned with prior restraints on political speech and that's about all."  Perhaps.  There is some historical scholarship to support this view.  But there are also contrary views, in particular that "the freedom of speech" to which the Amendment refers was a general statement exempting speech from punishment, subject to longstanding traditional exceptions.  (See, for example, this recent book by Wendell Bird.)

(3) Justice Scalia made it clear that he embraced the broader view of the First Amendment's original meaning -- that is, that it prohibited punishment of speech generally, subject to exceptions.  He explained his approach in, for example, a lecture titled "The Freedom of Speech," reprinted starting at p. 201 of Scalia Speaks (the volume of Scalia's speeches edited by Ed Whelan and Christopher Scalia).  Justice Scalia's opinion in the violent video game case (Brown v. Entertainment Merchants), which the post criticizes, reflects that approach.    It uses originalist sources to conclude that there was no traditional exception for speech describing violence, and thus concludes that speech describing violence (including depictions in video games) comes within the general protection of the Amendment.  Of course, one can dispute Scalia's specific conclusion, and one can dispute his general understanding of the First Amendment's original meaning (as Professor Segall does).  But that does not make the Entertainment Merchants case -- or Scalia's general approach to the First Amendment --  non-originalist.

(4) I agree that some of the decisions decided by a narrow conservative majority lack persuasive originalist foundations -- in particular,  Janus v. AFSCME and McCutcheon v. FEC (both of which I criticized on this blog).  But these questionable cases do not make the Court's entire First Amendment enterprise illegitimate from an originalist perspective.  On the whole, I think most of the Court's modern free speech decisions can be justified either as applications of relatively settled precedent or as applications of the broader Scalia view (as opposed to the narrow Segall view) of the First Amendment's original meaning.

04/13/2021

Nelson Lund on Young v. Hawaii
Michael Ramsey

At Law & Liberty, Nelson Lund (GMU - Scalia): Fake Originalism and the Right to Bear Arms.  From the introduction: 

Several years ago, the Ninth Circuit held that the Second Amendment does not protect the right to carry a concealed weapon in public. In its recent 7-4 decision in Young v. Hawaii, that court has now taken the next and final step: “There is no right to carry arms openly in public; nor is any such right within the scope of the Second Amendment.” Notwithstanding a couple of strangely delphic suggestions that the right to bear arms might be something other than the right to carry them in public, the court deleted that right from the Constitution.

This aggressive exercise of judicial power does not rest on the once-fashionable “living Constitution,” a fiction through which judges may amend the written Constitution to conform with their own policy views. At least not openly. Young is instead based on fake originalism.

Fake originalism comes in several varieties, including living originalismcommon-good originalism, and living textualism. All of them wrap judicial usurpation of the authority to amend the law in the respectable guise of originalism. Many questions about original meaning are honestly hard to answer because the relevant evidence is sparse, equivocal, or both. But some arguments are so illogical and bereft of supporting evidence that they constitute a stealth form of living constitutionalism. The Young opinion, more than a hundred pages long, is a massive exercise in fake originalism.

The majority opinion was written by Judge Jay S. Bybee, a George W. Bush appointee who is an accomplished legal scholar. He has taught and published widely in the field of constitutional law, and his academic literary skills are on full display in Young. The court’s treatment of the Constitution cannot be attributed to incompetence, carelessness, or an inability to understand Judge Diarmuid O’Scannlain’s crushing dissent. . . .