01/19/2022

Seth Barrett Tillman on the Design of Presidential Selection
Michael Ramsey

At The New Reform Club, Seth Barrett Tillman: How the Constitution’s Original (or pre-1801) Electoral College Worked. From the introduction: 

Under the original design of the Constitution, members of the Electoral College would each cast two votes for President for two distinct candidates, and, at least, one of the two votes cast by each elector could not be an inhabitant of the same state as the elector. There was no separate ballot for Vice President. Generally, the candidate with the most electoral votes would become President, and the runner-up in the Electoral College, who might very well be a political rival of the prevailing candidate, would become Vice President. This scenario is what happened in the 1796 presidential election. Incumbent Vice President John Adams, a Federalist, had 71 electoral votes, and 70 electoral votes was a majority of the electors. Former Secretary of State Thomas Jefferson, the runner up, was a Democratic-Republican, had 68 electoral votes, which was less than a majority of the electors. Adams became President, and Thomas Jefferson became Vice President. (There were 138 authorized electors, and, on this occasion, all the authorized electors voted.)

By modern U.S. elections standards it was an odd system, particularly because it was possible for more than one candidate to carry a majority of the electors. This is how that system worked....

It really was a terrible system.  Among other things, the Framers should have anticipated that (once George Washington left the scene) the top two candidates would be rivals (as promptly happened with Adams and Jefferson).

And a followup post from Professor Tillman: What the Twelfth Amendment Did and Did Not Do.  Key takeaway: the Twelfth Amendment improved the process, but still had its problems.  For example:

Under the pre-12th Amendment constitution, the House could choose among the top five candidates; after the 12th Amendment, the House was limited to the top three candidates. The problem is that the Constitution does not identity what should happen if there are not three candidates which can be readily identified as the top three. This could happen in a number of ways.

Presidential Ties

There can be an n-way tie for first place (carrying less than a majority of the electors), where n is greater than or equal to 4; or,

There can be a 2-way tie for first place (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 2; or,

There can be a first place candidate (carrying less than a majority of the electors), and an m-way tie for second place, where m is greater than or equal to 3; or,

There can be a first place candidate (carrying less than a majority of the electors), with a second place candidate, and an q-way tie for third place, where q is greater than or equal to 2.

In each of these scenarios, it could be plausibly argued that the House has a power to choose the President among the top three candidates and among anyone (else) who ties among the top three. But that interpretation or result does not clearly fit with the Constitution’s text. It could also be plausibly argued that in each of these circumstances, the House is entirely disabled from holding a contingent election for President.

01/18/2022

The Stolen Art Case and the Limits of Formalism
Michael Ramsey

Today the Supreme Court hears argument in  Cassirer v. Thyssen Bornemisza Collection Foundation, which involves an effort to recover a painting seized by the Nazis that ended up in the hands of a Spanish Museum.   The question presented is a technical one:

Whether a federal court hearing state law claims brought under the Foreign Sovereign Immunities Act must apply the forum state’s choice-of-law rules to determine what substantive law governs the claims at issue, or whether it may apply federal common law.

To my mind the answer is blindingly obvious.  The Foreign Sovereign Immunities Act (FSIA), Section 1606, directs that:

As to any claim for relief with respect to which a foreign state is not entitled to immunity under section 1605 or 1607 of this chapter, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances...

The  defendant in Cassirer is a Spanish state-owned entity (the museum) that is defined as a "foreign state" under the FSIA.  It is not entitled to immunity as a result of an exception to immunity under Section 1605.  Therefore, by Section 1606, it "shall be liable in the same manner and to the same extent as a private individual under like circumstances."  No one disputes any of this.

Further, no one disputes that under the Court's longstanding decision in Klaxon v. Stentor Electric Manufacturing Co., a similar suit against a private defendant would be governed by the substantive law chosen by the forum state's choice-of-law rules.  That is, a "private individual under like circumstances" would be governed by the choice of law rules where the suit is heard (here, California).  Thus, it seems (to me) necessarily to follow  that the state-owned defendant in Cassirer should also be governed by the choice of law rules where the suit is heard.  (I joined a law professors' amicus brief, principally written by Professor Zachary Clopton of Northwestern, saying basically that.) 

I'm optimistic that the Supreme Court will agree: the Court has been excellent in following the text of the FSIA in a series of recent cases.  But the fact that the case has gotten as far as it has is not encouraging.  An excellent panel of the Ninth Circuit (Judges Callahan, Bea and Ikuta) held instead that federal common law (meaning them making it up) should govern the choice of law question.

I understand their impulse.  California has absurdly broad choice of law rules that in this case might have applied California law to a dispute about a Spanish defendant's title to a painting seized from its rightful owner (a German) by Germans in Germany, and ultimately acquired by the Spanish defendant from a Swiss citizen in Spain.  Moreover, there may well be serious foreign policy implications were a court to force the Spanish defendant -- which wasn't complicit in or likely even aware of the initial theft -- to give up the painting.

In a formalist world, none of this should matter.  The statute says the same rules apply to a private defendant and a non-immune state defendant.  That's all one should need to know.  But it wasn't enough to make this an easy case (at least so far).  

RELATED:  Will Baude has thoughts on the case here.  He may well be right about some larger concerns, but that doesn't affect my view of this particular case.  

01/17/2022

New Criterion Symposium on Common Good Conservatism
Michael Ramsey

At New Criterion, a symposium on “Common-good conservatism: a debate”, with a leading essay by Kim R. Holmes, responses by Ryan T. AndersonJosh HammerCharles R. KeslerDaniel J. MahoneyJames PieresonRobert R. Reilly, and R. R. Reno, followed by concluding remarks from Mr. Holmes.

Kim Holmes' essay is The Fallacies of the Common Good.  From the introduction:

Anyone observing the evolution of conservative thought over the past few years could not have escaped a growing trend. Politicians, intellectuals, and think-tankers are questioning traditional American conservatism’s commitment to limited government, individual natural rights, and economic freedom. They are talking up the virtues of the common good in ways that call into question their commitments to liberty and freedom.

The philosophical questioning of the principles of the American founding is coming from two different factions within the Right. One involves the national conservatives. The other is from philosophers who wish to resurrect the moral organizing principles of natural law. Both reject the idea of “intrinsic” rights that is traditionally associated with the founding.

The fact that these critiques arise from the American Right is significant. American progressivism has long questioned the founding and tried to revise it to suit its purposes. Now it appears members of the Right are doing the same thing. Why? And what are the implications, not only for conservatism but for the American nation?

Othe two common-good schools of thought, the national conservatives are the more prominent. Intellectuals such as Yoram Hazony and Josh Hammer have developed a theory of American conservatism that is inspired by Edmund Burke. What is novel is not the reference to Burke per se—the conflict between Burke and John Locke has long been part of the debate on whether the founding was liberal or conservative. Rather, it is the linking of the Burkean argument to the tradition of nationalism that is new. Like Burke, the national conservatives believe a nation’s identity and government should be organized around its unique history, culture, and customs. Like modern nationalists, they believe national sovereignty is justified by the particular rights of peoples—all peoples in their unique ways—rather than by the universalist claims of legitimacy that often attend democratic institutions.

One of the most thorough expositions of the national-conservative viewpoint is found in an essay by Josh Hammer published in the Harvard Journal of Law and Public Policy [Ed.: available here]. Hammer criticizes the doctrine of constitutional originalism and posits instead what he calls “common-good originalism.” His main conclusion is that the American founders were not really Lockean believers in intrinsic rights, but Burkeans who saw rights as instrumental or as means to an end. ...

For that reason, conservatism “rightly understood” is “more open to wielding state power” and, when need be, willing to “enforce our order” or even to “reward friends and punish enemies (within the confines of the rule of law).”

Josh Hammer's response is Yesterday’s man, yesterday’s conservatism: On common-good originalism.

Via Paul Mirengoff at Powerline, who summarizes the essays here:

The National Conservatives, A Debate

The National Conservatives, A Debate, Part Two

He also points to this essay by Peter Berkowitz: The Debate Over 'Common-Good Conservatism'.

01/16/2022

Ann Woolhandler on Nicholas Parrillo on Nondelegation
Michael Ramsey

Ann Woolhandler (University of Virginia School of Law) has posted Public Rights and Taxation: A Brief Response to Professor Parrillo (11 pages) on SSRN.  Here is the abstract:

A division exists between scholars who claim that Congress made only limited delegations to executive officials in the early Republic, and those who see more extensive delegations. In A Critical Assessment of the Originalist Case Against Administrative Regulatory Power: New Evidence from the Federal Tax on Private Real Estate in the 1790s, Professor Nicholas Parrillo claims that congressional delegations under the direct tax of 1798 undercut arguments that early delegations of rulemaking either addressed unimportant issues or were limited to special categories. Nondelegation scholar Professor Ilan Wurman responded to Parrillo in the volume of the Yale Law Journal in which Parrillo’s article appeared, particularly arguing that Congress itself addressed the important issues as to the 1798 tax. This paper instead focuses on Parrillo’s claim that the 1798 tax did not fall within any limited special category for nondelegation purposes. Admittedly, Parrillo’s evidence undermines some generalizations that early rulemaking was not “coercive and domestic.” Taxation, however, falls into the category of public rights, which could include matters that were domestic and coercive, but that nevertheless allowed for a more lenient application of separation of powers strictures.

Here are links to the key papers discussed in the essay:

Nicholas R. Parrillo, A Critical Assessment of the Originalist Case Against Administrative Regulatory Power:
New Evidence from the Federal Tax on Private Real Estate in the 1790s, 130 Yale L.J. 1288 (2021)

Ilan Wurman, Nondelegation at the Founding, 130 Yale L.J. 1490, 1497 (2021)

UPDATE:  Jonathan Adler comments at Volokh Conspiracy: Woolhandler on Public Rights, Taxation and Delegation at the Founding, including this observation: 

One point that Woolhandler's comment underscores is that contemporary characterizations of the scope, nature, importance of particular delegations may not track with those of the founding period. Indeed, the prevailing categories and characterizations of 1787 might not even make much sense to modern commentators. But insofar as the original meaning of the Constitution does place limits on the delegation of legislative power, founding era characterizations and understandings would be more important than those of today.

01/15/2022

Podcast on Executive Power and Originalism with Jed Shugerman, Eric Segall and Me
Michael Ramsey

Thanks to Eric Segall for hosting me on his podcast Supreme Myths along with Professor Jed Shugerman of Fordham Law School -- the topic is "Presidential Power, Originalism, and Judicial Review," and Professor Shugerman and I agree on more things than one might expect, while still disagreeing on a lot. Sometimes we gang up on our moderator.

(There are other interesting podcasts in the series, including Professor Segall talking with Jamal Greene about his new book How Rights Went Wrong, among other things.)

01/14/2022

Jack Beermann: The Immorality of Originalism
Michael Ramsey

Jack Michael Beermann (Boston University School of Law) has posted The Immorality of Originalism (56 pages) on SSRN.  Here is the abstract:

The central claim of this essay is that in interpreting the U.S. Constitution, it is immoral to choose original intent over social welfare, broadly conceived. Once this argument is laid out and defended on its own terms, I support the central claim with a variety of arguments, including the defective process pursuant to which the Constitution was enacted, the deeply flawed substantive content of the Constitution, the incongruity of fidelity to the views of a generation of revolutionaries, the current virtual imperviousness of the Constitution to amendment, the failure of the Constitution to resolve fundamental questions concerning the allocation of power within the government, which leads to dependence on the un-democratic Supreme Court to resolve important and controversial social issues and finally originalism’s tendency to force otherwise honorable people to lie or obfuscate about the reasons for their official decisions.

01/13/2022

The Year in Review: Originalism Articles of 2021 (Part 3)
Michael Ramsey

My final post in this series is entirely subjective: I picked 22 originalism-oriented articles from 2021 (that weren't on my other 2 lists, see here and here), that were featured on the Originalism Blog, and that I thought were especially interesting.  (Here is my similar post from last year.) But probably I forgot some.  Here they are:

Gregory Ablavsky (Stanford), Getting Public Rights Wrong: The Lost History of the Private Land Claims

Jud Campbell (Richmond), The Emergence of Neutrality

Christine Kexel Chabot (Loyola Chicago), Interring the Unitary Executive

Saul Cornell (Fordham), The Right to Regulate Arms in the Era of the Fourteenth Amendment: The Emergence of Good Cause Permit Schemes in Post-Civil War America

James Fox (Stetson), The Constitution of Black Abolitionism: Re-Framing the Second Founding

Josh Hammer (Edmund Burke Foundation; Newsweek), Common Good Originalism: Our Tradition and Our Path Forward 

Jean Galbraith, The Runaway Presidential Power over Diplomacy

Anita Krishnakumar (Georgetown), Statutory History

Kurt Lash (Richmond), Re-Speaking the Bill of Rights: A New Doctrine of Incorporation 

Kurt Lash (Richmond), The 1791 Amendments as the 'Bill of Rights,' Founding to Reconstruction (A Response to Revisionists)

Gary Lawson (Boston University) & Guy Seidman (Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law), Are People in Federal Territories Part of “We the People of the United States”?

Thomas H. Lee (Fordham), Article IX, Article III, and the First Congress: The Original Constitutional Plan for the Federal Courts, 1787 – 1792 

Ethan Leib (Fordham), Are the Federal Rules of Evidence Unconstitutional? 

Michael Mannheimer (Northern Kentucky), Fugitives from Slavery and the Lost History of the Fourth Amendment

James Pfander (Northwestern) & Andrew Borrasso (J.D. Northwestern '20), Public Rights and Article III: Judicial Oversight of Agency Action

James Pfander (Northwestern) & Elena Joffroy (J.D., Northwestern '20), Equal Footing and the States "Now Existing": Slavery and State Equality Over Time

Elizabeth Pollman (Penn), Corporate Personhood and Limited Sovereignty 

Saikrishna Prakash (Virginia) & William Hall (Virginia JD ’19), The Constitution’s First Declared War: The Northwestern Confederacy War of 1790-95

David Schwartz (Wisconsin) & John Mikhail (Georgetown), The Other Madison Problem

Holden Tanner (Yale J.D. ‘21), Constitutional Norms in Originalist Adjudication 

Franita Tolson (USC), 'In Whom is the Right of Suffrage?': The Reconstruction Acts as Sources of Constitutional Meaning 

Lael Weis (Melbourne), Originalism and Constitutional Amendment

01/12/2022

Eric Claeys on Dobbs and Precedent
Michael Ramsey

Eric Claeys (George Mason - Scalia) is guest-blogging at Volokh Conspiracy about his article Dobbs and the Holdings of Roe and Casey (Georgetown Journal of Law & Public Policy, Vol. 20, No. 1, 2022, forthcoming).  Here are his initial posts:

Dobbs and the Holdings of Roe and Casey: Roe and Casey—reaffirming, overruling … and rewriting

Dobbs and the Holdings of Roe and Casey: Roe, its judgment, and its reasons for decision

And here is the abstract of the article from SSRN:

The U.S. Supreme Court is currently considering the case Dobbs v. Jackson Women’s Health Organization. In Dobbs, the State of Mississippi has asked the Court to overrule Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). At oral argument, many of the Justices seemed to agree that Dobbs fairly presents the question whether Roe and Casey should be reaffirmed or overruled. At argument, however, Chief Justice John Roberts explored an alternative theory. In this exploratory theory, Roe and Casey entitle women only to a fair or meaningful opportunity to obtain abortions during pregnancy. Neither Roe nor Casey entitles women to obtain abortions, the theory suggests, up to the time when their fetuses are likely to be viable after birth.

This Article studies that exploratory theory with the two most relevant sets of legal doctrines. Because the theory raises questions about what Roe, Casey, and other previous abortion cases held, the Article summarizes general legal principles about precedents and judicial authority. Courts rely on these principles when they identify the holdings, reasons for decision, and obiter dicta from earlier decisions. Because Roe, Casey, and the other relevant decisions all considered overbreadth challenges to state abortion restrictions, the Article also summarizes the legal rules federal courts follow when they consider facial overbreadth challenges. The Article applies those two sets of doctrines to Roe, Casey, and 11 other subsequent cases in which the Court declared unconstitutional state pre-viability restrictions on abortion. In all of those cases, necessary to a judgment was this proposition of law: A state restriction on abortion violates the Fourteenth Amendment Due Process Clause if it restricts a substantial number of pre-viability abortions without justification. Neither Roe, nor Casey, nor any of the other 11 post-Roe and -Casey decisions invalidating pre-viability abortion restrictions can be interpreted as narrowly as they would need to be for the theory explored at oral argument in Dobbs to be convincing or faithful to the Court’s case law.

This Article helps make clear the choices presented in Dobbs. Justices may reaffirm Roe and Casey, and they may overrule those cases. Unless they depart drastically from standard legal rules about judgments and overbreadth, however, they cannot avoid that choice.

Though not directly concerned with originalism, the article and the situation in Dobbs pose important questions about the way originalism interacts with precedent.

01/11/2022

Mitchell Berman Responds to Stephen Sachs' Article "Originalism: Standard and Procedure"
Michael Ramsey

Mitchell N. Berman (University of Pennsylvania Carey Law School) has posted Keeping Our Distinctions Straight: A Response to “Originalism: Standard and Procedure” (Harvard Law Review Forum (forthcoming 2022)) (17 pages) on SSRN.  Here is the abstract:

For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees that the basic distinction Sachs highlights is important, but argues that it’s already well understood in the constitutional theory literature under different labels, such as the familiar distinction between theories of legal content and of adjudication, and the less familiar distinction between “constitutive” and “prescriptive” theories of constitutional interpretation. It argues further that, nomenclature aside, the distinction does not lend originalism the support that Sachs claims for it because we remain without good reason to believe that originalism is our constitutional standard.

Professor Sachs' article Originalism: Standard and Procedure, one of the most downloaded originalism articles of 2021, was published in the current issue of the Harvard Law Review (135 Harv. L. Rev. 777 (2022)).

I agree with Professor Berman's comment that we need "good reason to believe that originalism is [or, I would say, should be] our constitutional standard" but I think there are some good reasons.

01/10/2022

The Year in Review: Originalism Articles of 2021 (Part 2) – The Top 25 Most Downloaded New Papers
Michael Ramsey

This post continues the retrospective on originalism scholarship in 2021 -- see here (books)and here (articles part 1) for the first two posts.  These are the 25 most downloaded originalism/textualism-oriented new papers posted on SSRN in 2021, as featured on the Originalism Blog.  (Here is the list for 2020).

Of course this measure has substantial limitations, including that it favors papers posted early in the year; that not all important papers are posted on SSRN; and that number of downloads does not really prove anything about a paper except how many times it was downloaded.  But with those caveats, here's the list:

1. Gerard Magliocca (Indiana -- McKinney), Amnesty and Section Three of the Fourteenth Amendment

2. Stephen Sachs (Harvard), Originalism: Standard and Procedure

3. Kevin Tobia (Georgetown), Brian Slocum (McGeorge) & Victoria Nourse (Georgetown), Statutory Interpretation from the Outside

4.  David Pozen (Columbia) & Thomas Schmidt (Columbia), The Puzzles and Possibilities of Article V

5.  Mitchell Berman (Penn) & Guha Krishnamurthi (Oklahoma), Bostock was Bogus: Textualism, Pluralism, and Title VII

6.  Orin Kerr (Berkeley), Katz as Originalism

7.  Judge Andrew Oldham (U.S. Court of Appeals, Fifth Circuit), Official Immunity at the Founding

8.  Evan Bernick (Northern Illinois), Eliminating Constitutional Law

9.  James Cleith Phillips (Chapman) & Josh Blackman (South Texas), Corpus Linguistics and Heller

10.  Aaron Tang (Davis), The Originalist Case for an Abortion Middle Ground

11.  Matthew Seligman (Yale), The Vice President's Non-Existent Unilateral Power to Reject Electoral Votes

12.  Samuel Bray (Notre Dame) & Paul Miller (Notre Dame), Getting Into Equity

13.  Seth Barrett Tillman (NUI Maynooth), Non-Textualism and the Duck Season-Rabbit Season Dramaturgical Dyad: A Very Short Response to Professor Cass Sunstein (and Others)

14.  Jed Handelsman Shugerman (Fordham), 'Vesting': Text, Context, Dictionaries, and Unitary Problems

15.  Frederick Schauer (Virginia), Unoriginal Textualism

16.  Matthew Schafer (Fordham), In Defense: New York Times v. Sullivan

17.  Seth Barrett Tillman (NUI Maynooth) & Josh Blackman (South Texas), Offices and Officers of the Constitution, Part I: An Introduction

18.  Jack Beermann (Boston University) & Gary Lawson (Boston), The Electoral Count Mess: The Electoral Count Act of 1887 Is Unconstitutional, and Other Fun Facts (Plus a Few Random Academic Speculations) about Counting Electoral Votes

19.  (tie) Aaron Nielson (BYU) and Christopher Walker (Ohio State), Congress's Anti-Removal Power

19.  (tie) Laurent Sacharoff (Arkansas), The Broken Fourth Amendment Oath

21.  Evan Bernick (Northern Illinois), Constitutional Hedging

22.  Eliza Sweren-Becker (Brennan Center) & Michael Waldman (Brennan Center), The Meaning, History, and Importance of the Elections Clause

23.  Joseph Blocher (Duke) & Mitu Gulati (Virginia), Navassa: Property, Sovereignty, and the Law of the Territories

24.  David Kopel (Independence Institute) & George Mocsary (Wyoming), Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii

25.  Joel Alicea (Catholic), Liberalism and Disagreement in American Constitutional Theory

01/09/2022

Peter Wallison on the Supreme Court and the Administrative State
Michael Ramsey

At Law & Liberty, Peter Wallison (AEI): The Supreme Court Confronts the Administrative State. From the introduction:

It could be a coincidence—or it could foretell an historic Supreme Court term. The Court has now accepted two cases for this term that could threaten the essential legal underpinnings of the federal administrative state.

The first is American Hospital Association v. Becerra, in which the plaintiff questions the Chevron doctrine—a rule fashioned by the Supreme Court itself in 1984 that requires lower federal courts to defer to administrative agencies’ interpretation of their delegated authorities, where the statute is ambiguous and the agency’s decision is “reasonable.” Under this rubric, lower federal courts have given administrative agencies wide leeway to interpret the scope of their authority. 

The second case, which has received less attention, is West Virginia v. Environmental Protection Agency, in which the state is challenging EPA’s authority to impose restrictions on the emission of greenhouse gases under the Clean Air Act. West Virginia has a number of objections to the EPA’s actions, but one of them raises a constitutional issue known as the nondelegation doctrine, which was last invoked by the Supreme Court in 1935. This holds that under the Constitution’s separation of powers, Congress may not delegate any of its legislative authority to agencies of the executive branch. Accordingly, if Congress gave so much discretion to the EPA in the Clean Air Act that the agency could create what was in effect a new law—without congressional authorization—the Act would violate the nondelegation doctrine.

Thus, while Chevron has largely been used to expand the authorities of administrative agencies over time—with the courts providing generous readings for agencies’ claims of authority under ambiguous laws—the nondelegation doctrine has the potential to narrow the range of administrative activity by requiring Congress to enact more tightly drawn legislation. If the Court should weaken or eliminate Chevron, and re-invigorate the nondelegation doctrine, it would mean—in a single term—a significant narrowing of administrative state authority and an historic shift in the Court’s jurisprudence away from precedents initially established in and after the New Deal.

Prior cases have laid the groundwork for changing the Court’s view of both doctrines. ...

Adding to this, of course, are the vaccine mandate cases argued at the Supreme Court on Friday.

Although often described, especially by right-leaning commentators, as a problem of the administrative state, I see these issues as centrally concerned with executive power.  Recently there has been much academic writing about constraints on executive power, in particular constraints on the President's ability to remove executive officers.  But that is largely a sideshow (albeit an interesting one to me).  The modern President's power is not materially limited by having a handful of agency heads protected from at-will removal, nor is that power greatly enhanced by the Court finding some of these protections unconstitutional.  The modern President's great power stems largely from (a) Congress' broad delegations of policymaking authority to executive agencies and (b) Presidents' willingness to read these delegations extremely aggressively (and courts' acquiescence in these broad readings).

Both of these factors can be seen in the two cases mentioned in the linked essay, as well as the vaccine cases.  None of them involves (as Justice Black famously put it in the Youngstown case) the President "direct[ing] that a congressional policy be executed in a manner prescribed by Congress."  All of them involve instead (again in Black's words) the President "direct[ing} that a presidential policy be executed in a manner prescribed by the President."  The latter, Black said in Youngstown, is unconstitutional:  "The Constitution limits [the President's] functions in the lawmaking process to the recommending of laws he thinks wise and the vetoing of laws he thinks bad." But the modern President (with an assist from Congress and the courts) routinely circumvents Youngstown by pointing to a vague statute arguably conveying almost unlimited policymaking discretion.

How much the Constitution's original meaning can be deployed to address this situation is a different question, and (as the essay says) an important one for this year at the Court.

01/08/2022

Seth Barrett Tillman on Impeaching Prosecutors for Non-Prosecution
Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Impeaching Prosecutors Who Fail To Prosecute.  From the introduction:

With the election of the Soros-funded prosecutors, and radical policy innovations in prosecutorial discretion, and changed incidence (including increased incidence) in crime, those who (politically) oppose such policies will naturally look to push back against these prosecutors and their policy changes. Some will suggest impeachment as a valid route. I would not support that approach. This is why. 

My discussion is limited to federal impeachment rules—applicable to federal officeholders—which limit impeachment to “high crimes and misdemeanors.” Some states have impeachment rules akin to the federal model, and such states’ impeachment rules will apply to their state officeholders. By contrast, under New York law, which lacks any “high crimes and misdemeanors” language regarding impeachment in its state constitution, the scope of the state legislature’s impeachment power may be considerably wider than Congress’ power under the United States Constitution. And, under the California state constitution, certain county and municipal offices are not subject to impeachment by the state legislature. Thus, elected California county prosecutors may be beyond the power of the California state legislature to impeach. 

Again, impeachment under the federal model is limited to “high crimes and misdemeanors.” Differences of opinion in regard to best policy, and after-the-fact investigations of the real world consequences which flow from such differences of opinion regarding policy, standing alone, cannot meet the “high crimes and misdemeanors” standard. This is particularly true where the alleged wrongdoer, i.e., the officeholder-defendant, announced his policy positions prior to his appointment or election. 

So, in what circumstances can a prosecutor be impeached under the federal model? There are primarily three situations where impeachment would be appropriate. ...

Most significantly, this point (with which I think some people might disagree):

But even discretion has limits. A prosecutor has limited resources and can choose priorities. A prosecutor can choose to prosecute a crime in particular circumstances—e.g., where the evidence is particularly strong, or where the societal harm caused by the crime is particularly great. But if a prosecutor establishes a policy for his office, e.g., that his office will never bring a prosecution in regard to a particular class or type of crime, then that policy choice would entirely  nullify or suspend a statute. The President cannot do that, i.e., entirely nullify or suspend a statute, and, a  fortiori,  neither can his prosecutors and other appointees. An elected or appointed officeholder’s knowingly embracing such a policy choice—i.e., one entirely nullifying or suspending a statute—would meet the high crimes and misdemeanors standard. Why? A prosecutor cannot make legal what the legislature has determined to be a crime. 

I agree that "prosecutor cannot make legal what the legislature has determined to be a crime." But it does not necessarily follow that a prosecutor cannot refuse to prosecute a particular type of crime (even in its entirety) because the prosecutor thinks resources are best spent elsewhere.  That does not make the criminalized action legal; it just means that (for the moment anyway) there won't be any punishment.  Nor do I see why the Constitution necessarily draws the line between refusing the prosecute a type of crime in its entirely and refusing to prosecute a very substantial proportion of a type of crime.

As Professor Tillman says later in the post, the key question is the interaction between the President's duty to take care that the laws be faithfully executed and the President's executive power of prosecutorial discretion.  It's not clear at all to me how these two should be understood to interact.

Perhaps the answer is that it's up to the House and Senate to decide how much non-enforcement is too much (so, it's a political question).

01/07/2022

The Year in Review: Originalism Articles of 2021 (Part 1)
Michael Ramsey

Continuing my 2021 originalism retrospective (see here for the first post on books), I turn to originalism-oriented articles featured on the blog in the past year.  I plan to highlight some of the most important articles (in my view), but to avoid conflicts of interest, I'll first note originalism-oriented articles from my Originalism Blog and USD Originalism Center colleagues, either published or posted on SSRN in 2021.  Here are 10:

Larry Alexander, Formalist Textualism and the Cernauskas Problem (J. of Contemp. Legal Issues)

Larry Alexander, Connecting the Rule of Recognition and Intentionalist Interpretation: An Essay in Honor of Richard Kay (Connecticut L. Rev.)

Laurence Claus, Separation, Enumeration, and the Implied Bill of Rights (J. of Law & Politics)

Laurence Claus, Authority and Meaning (Connecticut L. Rev.)

Christopher R. Green, Originalism as Faithfulness (Univ. of Chicago L. Rev. Online)

Michael B. Rappaport, Presidential Polarization (Ohio State L.J.) (with John O. McGinnis)

Michael B. Rappaport, The Power of Interpretation: Minimizing the Construction Zone (Notre Dame L. Rev.) (with John O. McGinnis)

Steven D. Smith, Book Review: Post-Liberal Religious Liberty: Forming Communities of Charity, by Joel Harrison (J. of Law & Religion)

John Vlahoplus, Early Delegations of Federal Powers (G. Washington L. Rev. Arguendo)

John Vlahoplus, Apportionment, Allegiance, and Birthright Citizenship (British J. of American Legal Studies)

01/06/2022

Professor Akhil Amar on Congressional Power to Establish Fundamental Rights that Both States and Private Citizens Must Respect 
Andrew Hyman

Last month, as Mike Ramsey has noted, Yale Law Professor Akhil Amar had National Review pundit Ed Whelan as a guest on Amar’s podcast.  It was an interesting discussion, covering many issues, but I’d just like to focus here on one bit of it.  Toward the end of the podcast, Amar said this:  
 
I think Congress has broad power to protect women’s rights under the plain language of the first sentence of the Fourteenth Amendment and the last sentence of the Fourteenth Amendment, but you see precedent is a stumbling block for me but again if you’re a constitutional fundamentalist your allegiance is to the Constitution and not the precedents.
 
I’ll give Professor Amar an A+ on the last part, but not on the first part.  In context, Amar was speaking about Congress protecting women’s unenumerated rights against violation by states, because women are U.S. citizens.  I agree entirely that Congress has power to protect women’s rights from violation by states, insofar as Congress is acting under its enumerated powers, or is enforcing enumerated constitutional rights, but Amar is saying much more.  His argument is that the first and last sentences of the Fourteenth Amendment are sufficient to empower Congress to make state actors as well as many private actors respect whatever rights of citizens that Congress deems in good faith to be fundamental, and I disagree with Professor Amar on that point. Here are the first and last sections of the 14th Amendment, with the Citizenship Clause and the Enforcement Clause in bold: 
 
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws....The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
 
As I understand Professor Amar, the two bolded sentences are enough to give Congress power to override state laws (and many private parties too) that infringe upon whatever rights that Congress honestly thinks should be considered fundamental, so long as the beneficiary of those rights is a U.S. citizen.  There are some major problems with that interpretation, though, and it asks the Citizenship Clause to do way too much.  Professor Amar has written that ordinary Americans in 1866-1868 “understood Taney’s opinion [in Dred Scott] as the paradigm case of what this sentence aimed to repudiate,” but it’s much more likely that ordinary Americans viewed several sentences collectively in the Thirteenth and Fourteenth Amendments that way.  For example, the sentence banning slavery, and the sentence guaranteeing the equal protection of the laws, come to mind as very wonderful repudiations of Dred Scott as well. 
 
The Citizenship Clause lacks anything like the “no state shall” language later in the Fourteenth Amendment.  More than that, it lacks any prohibitory language at all, and is best understood as definitional; it is very different from the Thirteenth Amendment which prohibits quite a lot, so Professor Amar’s assertions (in a 1998 article) that Congress can broadly guarantee “the badges and incidents of ... citizenship” under the Fourteenth Amendment rest upon a tenuous analogy to the Thirteenth.  The Constitution gives various rights to citizens, and the Citizenship Clause just defines who those citizens are.  
 
Professor Amar has argued that the lack of “no state shall” language means the Citizenship Clause can be construed as a ban not just on fundamentally harmful state action, but also on lots of fundamentally harmful nongovernmental action, and as a ban on fundamentally harmful congressional action too.  It’s as though the Constitution included a clause that says “all nastiness to citizens is forbidden." I cannot see any textual distinction that could, as Amar suggests, immunize some nongovernmental behavior from the Citizenship Clause because it’s consensual and very private, but even if such a distinction is valid then Congress would still take over vast areas of criminal law that are currently dealt with locally, and thus responsively to the citizenry.
 
In the aforelinked 1998 article, Professor Amar acknowledged that, under the Fourteenth Amendment, “Congress can legislate rights against states, not private persons….”  Indeed, private persons unconnected to government are outside the scope of the first paragraph of the Fourteenth Amendment.  The first draft of that Amendment was voted down in Congress for exactly that reason.  And that’s the same reason why Professor Amar’s interpretation of the Citizenship Clause does not work: it would inevitably get Congress and the courts into the business of regulating nongovernmental behavior directly, given that it includes no state action requirement.  Professor Amar assures us (in a 2000 article) that the Citizenship Clause cannot authorize regulation of “truly private consensual relations that were outside the ambit of citizenship -- but could regulate larger nongovernmental systems of exclusion in places such as hotels, theaters, and trains.”  I am not assured by this assurance even if it is accurate, because control of lots of nonconsensual misconduct toward citizens would quickly become federalized, e.g. child abuse, murder, kidnapping, theft, and lots more behavior involving citizens who have not reached the age of consent.
 
The podcast that prompted this blog post was devoted largely to the issue of abortion.  Professor Amar was suggesting that Congress could establish a fundamental right to get an abortion even if the courts take a neutral position.  But, if Professor Amar's constitutional theory is correct, then Congress could instead naturalize the unborn child and give it a fundamental legal right to life.  In the aforelinked 1998 article, Professor Amar wrote the following:
 
[T]he most sensible reading of the Fourteenth Amendment would involve both courts and Congress in the task of protecting truly fundamental rights against states, with states generally held to whichever standard was stricter -- more protective of fundamental freedoms -- in any given instance.
 
But alleged fundamental rights often conflict with each other.  For instance, perhaps Congress might be pro-life while the courts are pro-choice.  Then who decides which is more protective of fundamental freedoms?  Anyway, the point is moot, because it’s widely and correctly recognized that “The Thirteenth Amendment is the only amendment that limits both individual and governmental actions.”  Ergo the Citizenship Clause doesn’t, which means the Citizenship Clause must be definitional only (given that it does not distinguish state action from other action).
 
I thank Professor Amar for pointing me to several books and articles via email.  I found them very thought-provoking, despite my criticisms here.

01/05/2022

The Year in Review: Top 10 Originalism-Oriented Books of 2021
Michael Ramsey

Continuing an Originalism Blog tradition, here are 10 of last year's leading books of originalist interest, as featured on this blog (my subjective assessment).  (See here for the 2020 list).

Akhil Reed Amar (Yale), The Words That Made Us: America's Constitutional Conversation, 1760-1840 (Basic Books)

Stuart Banner (UCLA), The Decline of Natural Law: How American Lawyers Once Used Natural Law and Why They Stopped (Oxford University Press)

Randy E. Barnett (Georgetown) & Evan Bernick (Northern Illinois), The Original Meaning of the Fourteenth Amendment: Its Letter and Spirit (Harvard University Press)

Donald L. Drakeman (Notre Dame), The Hollow Core of Constitutional Theory: Why We Need the Framers (Cambridge University Press)

Jamal Greene (Columbia), How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Mariner Books)

Kurt T. Lash (Richmond), ed., The Reconstruction Amendments: The Essential Documents (2 vols.) (University of Chicago Press)

Kate Masur (Northwestern), "Until Justice Be Done": America's First Civil Rights Movement, from the Revolution to Reconstruction (W.W. Norton)

James E. Pfander (Northwestern), Cases Without Controversies: Uncontested Adjudication in Article III Courts (Oxford University Press)

Robert J. Steinfield (Buffalo), “To Save the People from Themselves”: The Emergence of American Judicial Review and the Transformation of Constitutions (Cambridge University Press)

Gordon S. Wood (Brown), Power and Liberty: Constitutionalism in the American Revolution (Oxford University Press)

 I'm sure I've missed some important candidates, so I invite reader nominations.

ADDED:  At City Journal, Stone Washington: The New Old Originalism?: A legal scholar argues for resuscitating the search for original intent (reviewing the book noted above by Donald Drakeman).

01/04/2022

University of Chicago Originalism Essay Contest
Michael Ramsey

An announcement from the University of Chicago Federalist Society:

University of Chicago Federalist Society

Announcing the Eaton Award:

The University of Chicago Federalist Society is excited to announce the Eaton Award, a writing prize made possible by the generosity of Professor Philip Eaton. The award is designed to encourage new scholarship in the area of Constitutional Law and to develop young Constitutional Law scholars. The winner of the 2021-2022 award will receive an amount in excess of $2000 (to be finalized later) as well as recognition for them and their work.

This year's topic and the rules for submission are below.

Prompt: Does originalism still work?

Justice Scalia defined originalism as interpreting the Constitution according to "what it meant when it was adopted" instead of "what current society, much less the Court, thinks it ought to mean." At the time, these claims were controversial, but in the next generation many legal thinkers followed Justice Scalia's approach. There are now at least four, and as many as six, self-identified originalists on the Supreme Court.

Originalism's animating principles are well-known. Originalism promotes consistency by pointing judges to something outside themselves and their policy preferences. Originalism protects democracy by preserving the will of the people as articulated in the Constitution and its many amendments. Originalism is faithful to the nature of the Constitution and its text. Originalism is part of our law and promotes the rule of law.

Much has changed since the defining days of originalism. Faith in our institutions is treacherously low. The COVID-19 pandemic has upended society. Political division has driven our nation to the brink of constitutional crisis. And many conservatives believe originalism is no longer delivering what it promised. As we sit here today, are the justifications for originalism still convincing? Or should those who believe in freedom, the separation of powers, and the rule of law develop a new approach to constitutional interpretation? Does originalism still work?

Rules for submission:

This essay competition is open to members of the Federalist Society anywhere in the country who do not have an extensive history of academic publication. The essay should be no longer than 50 pages, though we welcome shorter (or even much shorter) submissions. The essay may be of any style, but it must be original and previously unpublished at the time of submission. The author is welcome and encouraged to publish it later. (If you are unsure if your essay is eligible, please submit it!)

The winner will be judged by a committee made up of members of the University of Chicago Federalist Society chapter plus two outside experts in constitutional law (including one faculty member at the University of Chicago Law School).

Please submit your essay by email to Conley Hurst, ckhurst@uchicago.edu, by March 15, 2022.

The winner will receive a cash prize in excess of $2000, be recognized at an appropriate ceremony by the University of Chicago Federalist Society Chapter, and will have their essay promoted and circulated to other members of the Federalist Society by the Chapter.

(Via Will Baude at Volokh Conspiracy.)

 

01/03/2022

Nikolas Bowie & Daphna Renan: The Separation-of-Powers Counterrevolution
Michael Ramsey

Nikolas Bowie (Harvard Law School) and Daphna Renan (Harvard Law School) have posted The Separation-of-Powers Counterrevolution (Yale Law Journal, forthcoming) (92 pages) on SSRN. Here is the abstract:

Most jurists and scholars today take for granted that the U.S. Constitution imposes unwritten but judicially enforceable limits on how Congress and the President may construct their interrelationships by statute. This “juristocratic” understanding of the separation of powers is often regarded as a given or inherent feature of American constitutionalism. But it is not. Instead, it emerged from a revanchist reaction to Reconstruction. As an ascendent white South violently returned to power in Washington, its intellectual supporters depicted a tragic era in which an unprincipled Congress unconstitutionally paralyzed the President in pursuit of an unwise and unjust policy of racial equality. Determined to prevent Reconstruction from reoccurring, historians, political scientists, and a future Supreme Court Justice by the name of William Howard Taft demanded judicial intervention to prevent Congress from ever again weaving obstructions around the President. This Lost Cause dogma became Supreme Court doctrine in Myers v. United States. Authored by Chief Justice Taft, the opinion was the first to condemn legislation for violating an implied legal limit on Congress’s power to structure the executive branch. It is today at the heart of an ongoing separation-of-powers counterrevolution.

That counterrevolution has obscured, and eclipsed, a more normatively compelling conception of the separation of powers—one that locates in representative institutions the authority to constitute the separation of powers by statute. This “republican” conception accepts as authoritative the decision of the political branches as to whether a bill validly exercises the Necessary and Proper Clause to carry into execution the powers and interrelationships of Congress, the President, and the executive branch. Where the juristocratic separation of powers undermines both the legal legitimacy of the Court and the democratic legitimacy of the political branches, the republican separation of powers sustains an inherently provisional constitutional order—one grounded in deliberation, political compromise, and statecraft.

I think it's incorrect to say that modern formalist separation of powers scholarship and doctrine rests on "unwritten" limits on Congress' ability to structure the executive branch or that those limits are "implied."  In the view of modern scholarship and doctrine, the limits arise from the executive vesting clause (art. I, Sec. 1) plus other specific clauses of Article II.  Of course, the formalist reading of Article II may be wrong, but if so that doesn't make its asserted limits unwritten or implied (just wrong).

12/30/2021

Blackstone on Removal Power: Reprise
Michael Ramsey

Here are my four posts on Blackstone and removal power, responding to Professor Jed Shugerman's criticisms of originalist scholarship on the subject:

Blackstone on Removal Power, Part 1: Blackstone on the Unitary Executive

Blackstone on Removal Power, Part 2: Blackstone on Judicial Tenure

Blackstone on Removal Power, Part 3: Blackstone on Subordinate Magistrates

Blackstone on Removal Power, Part 4: Blackstone on Removal of Subordinate Magistrates

Professor Shugerman argued, in the article linked above and in a series of blog posts here, that originalist scholarship -- particularly in a brief submitted to the Supreme Court in Seila Law v. CFPB, greatly overstated the extent to which Blackstone described a broad removal power in the English system.  The posts noted above review Blackstone's writings on the subject.  In my view, they confirm that the originalist scholarship is basically correct on the key issue: a reader of Blackstone would conclude that the monarch, as part of the crown's unified executive power over law enforcement, had broad removal power over principal, national-level executive officers, and in large part had such a power over local executive officers as well.  I note, though, that Professor Shugerman makes some fair criticisms of the way the material was presented in the Seila Law brief, where it was necessarily described in somewhat abbreviated form due to space limitations.

12/29/2021

Joseph Simmons: Reconstructing the Bankruptcy Power
Michael Ramsey

Joseph E. Simmons (J.D. '22, Yale Law School; Ph.D.. Chicago) has posted Reconstructing the Bankruptcy Power: An Originalist Approach (131 Yale L.J. 306 (2021)) (64 pages) on SSRN.  Here is the abstract:

This Note responds to two distinct difficulties in the constitutional law of bankruptcy. First, many bankruptcy scholars and practitioners intuit that the Thirteenth Amendment places important limitations on the law of personal bankruptcy, but this intuition is difficult to cash out in a convincing legal argument. Second, modern bankruptcy law requires an expansive construction of the bankruptcy power, but such a construction is difficult to ground in the meaning of the Bankruptcy Clause in 1789. This Note resolves both difficulties by showing how the proper legal construction of the bankruptcy power changed during Reconstruction with the ratification of the Thirteenth Amendment in 1865. Before Reconstruction, the bankruptcy power was limited to the creation of collective-creditor remedies against merchants who committed acts of insolvency. The Thirteenth Amendment both granted Congress new powers to legislate against relations of economic domination, including relations between creditors and insolvent debtors, and altered the function that the bankruptcy power plays within the Constitution. These changes amounted to a reconstruction of the bankruptcy power, such that bankruptcy law now has as its primary purpose the provision of a “fresh start” to the honest unfortunate debtor. This argument helps ground the constitutionality of both voluntary bankruptcy and corporate bankruptcy, but its most important implications are for consumer bankruptcy law, particularly the status of the debtor’s fresh start and the grounds on which it can be denied.

12/28/2021

No Rehearing in Samoa Citizenship Case
Andrew Hyman

On December 27, the Tenth Circuit Court of Appeals voted 5-2 against en banc rehearing of Fitisemanu v. United States regarding a lawsuit by persons born in American Samoa claiming U.S. citizenship.  Judge Bacharach wrote a dissent to the denial of rehearing.

Mike Ramsey and I previously discussed this case at some length here at this blog, and a list of our blog posts is here.  As I mentioned, Christopher C. Langdell argued in 1899 that "United States" in the Citizenship Clause refers only to the states, because, "if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'"  This is an interesting subject, and is closely linked to the issue of whether children of persons unlawfully in the United States are entitled to birthright citizenship, instead of having to rely upon Congress to decide the matter via naturalization.

Jeff Hetzel: The Original Criminal Jury
Michael Ramsey

Jeff Hetzel (independent; J.D. Stanford Law School) has posted The Original Criminal Jury (47 pages) on SSRN.  Here is the abstract:

In early America, the criminal jury decided matters of law. The prosecutor and defense counsel read aloud to the jury from statutes, precedent, and treatises. The presiding judge instructed the jury that it had the power to decide matters of law. Then, the jury deliberated and rendered a verdict based on, among other things, its independent judgment about matters of law, whether that meant the common law, statutes, or the Constitution.

The legal world has for generations failed to recognize the power of the original criminal jury. Those who have not ignored the evidence of the jury’s power over matters of law have tended to interpret it as an early form of jury nullification, by which the jury could review the morality of the prosecution. But a careful examination of early practice reveals that the jury held no more power to nullify than it does today. Rather, the early American jury held the power to do what judges today are expected do—to decide what the law means without deciding its morality.

This Article reintroduces this forgotten—yet still constitutionally binding—model of the criminal jury.

12/27/2021

Blackstone on Removal Power, Part 4: Blackstone on Removal of Subordinate Magistrates
Michael Ramsey

This is my fourth post in a series responding to Professor Jed Shugerman’s criticisms of originalist scholarship on Blackstone and removal power (here are part 1, part 2 and part 3).  This post addresses what Blackstone said about removal of subordinate magistrates in vol. 1, ch. 9 of the Commentaries.  Again, the principal point of debate here is the extent to which Blackstone’s work describes a system in which the king had removal power over executive officers.

As discussed in my previous post, Blackstone opens Chapter 9 with the observation that he will not write about “his majesty’s great officers of state” because “I do not know that they are in that capacity in any considerable degree the object of our laws” (p. 327).  Chapter 9 then turns to a detailed examination of the rights and duties of six types of local officers: sheriffs, coroners, justices of the peace, constables, surveyors of highways, and keepers of the poor.  He mentions removal only as to the first four (and the last two do not seem to exercise material executive powers).

As to justices of the peace, Blackstone says directly that

As the office of these justices is conferred by the king, so it subsists only during his pleasure; and is determinable, 1. By the demise of the crown, that is, in six months after. 2. By express writ under the great seal, discharging any particular person from being any longer justice. 3. By superseding the commission by writ of supersedeas … 4. By a new commission, which virtually, though silently, discharges all the former justices that are not included therein; for two commissions cannot subsist at once. 5. By accession of the office of sheriff or coroner… (pp. 341-342.)

This “during his pleasure” tenure may seem odd because Blackstone wrote earlier that judges had had tenure during good behavior pursuant to the Act of Settlement (see my second post in this series).  But justice of the peace was a distinct officer that was executive as well as judicial and was not covered by the Act of Settlement (which applied only to “judges of the superior courts”):

His commission, first, empowers him singly to conserve the peace; and thereby gives him all the power of the antient conservators at common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals…. (p. 342.)

Thus a justice of the peace was a substantial local officer without removal protection. Moreover, Blackstone’s description suggests a general baseline principal governing removals, namely that for an office “conferred by the king,” the officeholder can be discharged by the king (a) issuing an “express writ under the great seal” or (b) issuing a new commission to a different person “which virtually, though silently, discharges” the former officeholder.  Both points strongly indicate that the crown had removal power over principal executive officers, at least absent any specific exceptions.

As to sheriffs, Blackstone described them as “do[ing] all the king’s business in the county” (p. 328).  They were appointed by a process (not fully explained) in which “the judges, and certain other great officers … nominate three persons to the king, who afterwards appoints one of them to be sheriff,” although Blackstone acknowledged some debate about whether in some circumstances they might be appointed by the king alone (pp. 329-331).  As to removals, he wrote:

Sheriffs, by virtue of several old statutes, are to continue in their offices no longer than one year; and yet it hath been said that a sheriff may be appointed durante bene placito, or during the king’s pleasure; and so is the form of the royal writ.  Therefore, until a new sheriff be named, his office cannot be determined, unless by his own death, or the demise of the king, in which case it was usual for the successor to send a new writ to the old sheriff. (p. 331.)

This passage is somewhat opaque, for the second sentence seems to contradict the first (especially given how the tenure of justices of the peace is described).  The best reading is probably that sheriffs were removeable by the king’s writ (as with justices of the peace), in keeping with their “during pleasure” appointment, and that the second quoted sentence above is incomplete in its description of how the officer’s tenure might be “determined” [i.e., ended].

The third type of local office, coroner, Blackstone expressly describes as “chosen by all the freeholders in the county court” (p. 335) and

chosen for life: but he may be removed, either by being made sheriff, or chosen verderor, which are offices incompatible with the other; or by the king’s writ de coronatore exonerando, for a cause to be therein assigned, as that he is engaged in other business, incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it.  And by statute 25 Geo II c.29, extortion, neglect, or misbehavior, are also made causes of removal. (p. 337).

Thus coroners had a form of good-cause tenure protection.  But Blackstone also described their office as “either judicial or ministerial; but principally judicial” – mainly, “enquiring (when any person is slain or dies suddenly) concerning the manner of death.” And they were not appointed by the king.  So their offices seem best understood as not materially part of the king’s executive power.

Finally, as to constables, “the general duty of all constables, both high and petty, as well as of the other officers, is to keep the king’s peace in their several districts; and to that purpose the are armed with very large powers, of arresting, and imprisoning, or breaking open houses, and the like…" (p. 344).  As to tenure, Blackstone says only that “high constables” are

appointed at the court leet of the franchise or hundred over which they preside, or, in default of that, by the justices at their quarter sessions; and are removeable by the same authority that appoints them.

This description suggests, without saying directly, that constables do not serve at the king’s pleasure – an interesting point given that they are described as having what appears to be considerable local executive power.

What all this means for local executive power under the English system may be subject to reasonable debate.  There is surely some basis for saying that executive power at the subordinate local level (as described by Blackstone) was not entirely unified in the king, but rather was to some extent exercised by local authorities such as coroners and (probably) constables who enjoyed some tenure protection.  Nonetheless, it also seems a fair conclusion that much – perhaps most – of the executive power at the subordinate local level (as described by Blackstone) was unified in the king, being exercised by local authorities such as justices of the peace and (probably) sheriffs who served at the king’s pleasure.

More importantly, this discussion further suggests that principal, national-level executive officers served at the king’s pleasure.  Even the principal local officers had at-pleasure tenure, and the ones that did not were special cases who either did not have extensive executive power (coroners) and/or had longstanding traditional procedures for selection (coroners and constables).  And Blackstone went into the details of the law of local offices after saying he would not discuss principal executive officers because they were not (so far as he knew) “the object of our laws.”  The most evident conclusion from all this is that the laws did not provide principal executive officers with tenure protection.

This concludes my survey of Blackstone on removal power.  Without engaging in a repetitive restatement of the analysis, in summary I think Blackstone’s account is best read to indicate a unified executive power in the king that included removal power over principal executive officers (but not judges) and most (though probably not all) local executive officers.  Thus while I thank Professor Shugerman for engaging in the debate and prompting this reassessment, I find his objections to the originalist account of Blackstone on removal power to be unpersuasive.

Several caveats should be noted.  First, Blackstone was not always accurate in his descriptions of English law, so I’m not making any claims here about what the English law of removal actually was; the point is instead how a careful reader of Blackstone would understand that law. Second, Blackstone was in any event only seeking to describe what English law was at the time, not what it necessarily must be; as an advocate of parliamentary supremacy, Blackstone surely believed that the constitutional structure could be changed by parliament (as parliament had done with respect to  judicial tenure in the Act of Settlement).  Third, the Constitution did not adopt all of the English system of executive power as described by Blackstone – most obviously, it rejected or limited executive power over appointments and key foreign affairs matters.  The limited point here is only how the founding generation in America likely understood the English system as described by Blackstone.  But as to that limited point, I think the foregoing analysis largely confirms what prior executive scholarship has said about it, and refutes the strongly worded objections Professor Shugerman has raised.

12/23/2021

Blackstone on Removal Power, Part 3: Blackstone on Subordinate Magistrates
Michael Ramsey

This is my third post in a series responding to Professor Jed Shugerman’s criticisms of originalist scholarship on Blackstone and executive removal power.  The first two posts described Blackstone’s general account of the king’s executive power (part 1) and Blackstone’s account of the tenure protections for judges under the Act of Settlement (part 2).  This post turns to Blackstone’s chapter titled “Of Subordinate Magistrates” (Vol. 1, Chapter 9 of the Commentaries).

As discussed in my opening post, Professor Shugerman is sharply critical of the originalists' contention that Blackstone described a system in which the king had broad removal power over subordinate executive officers.  In response, I’ve argued so far that Blackstone’s general discussion of executive power in vol. 1, ch. 7 of the Commentaries strongly implies a broad removal power – both because it affirms the king’s supreme and unified executive power and because it identifies judges, but not subordinate executive officers, as enjoying protection against removal by the king.

Blackstone begins Chapter 9 by saying that he will “proceed to enquire into the rights and duties of the principal subordinate magistrates."  Then there is this sharply disputed passage:

And herein we are not to investigate the powers and duties of his majesty’s great officers of state, the lord treasurer, lord chamberlain, the principal secretaries, or the like; because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them: except the secretaries of state are allowed the power of commitment, in order to bring offenders to trial. (vol. 1, p. 327, emphasis added.)

For the balance of chapter 9, Blackstone specifically discusses six categories of officers: sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor, including “the manner in which they are appointed and may be removed.”

In the originalist scholars’ brief in Seila Law v. CFPB and in other related originalist scholarship, this passage is read to mean that principal executive officers had no legal protection against removal from office because they are not in that capacity “the objects of our laws” and thus are wholly subject to the king’s supreme executive power.  Professor Shugerman objects strongly that Blackstone said no such thing; Blackstone only said he did not know whether the subordinate officers had such protection.

Professor Ilan Wurman (the principal author of the Seila Law brief) responds:

Jed argues that this [quotation] is not evidence of a removal power, but rather Blackstone is expressing uncertainty given his use of the phrase “I do not know.” Perhaps that’s right, but I read the passage differently. Blackstone seems to be saying, “I can’t say for sure in every case, but I do not understand them to be subject to these laws.” That would be consistent with earlier passages in which Blackstone wrote about the importance of unity in the executive and hence “all other[ magistrates] act[] by commission from, and in due subordination to” the monarch; it would also be consistent with Blackstone’s need to specify the exception for judges, who are “nominated indeed, but not removeable at pleasure, by the crown.” Still, I grant that it’s possible to interpret the passage differently.

            I agree with Professor Wurman, and I’ll add several points in support.  First, it’s a common expression to say something like “I don’t know that that’s right” to mean in effect “I’m confident that that’s not right, at least as a general matter.”  Second, Blackstone was the foremost authority on English law at the time; he was a chaired professor at Oxford who had systematically described the English constitutional system in a series of lectures that became the basis of the Commentaries, and he was, when he wrote this passage, engaged in preparing a comprehensive four volume treatise on English law.  If he did not know of any legal protections for the tenure of principal executive officers, I think it fair to conclude that there weren’t any of significance.

            Third, as Professor Wurman says, the preceding discussion in Chapter 7 of the Commentaries is entirely consistent with there being no legal barriers to the king’s removal of principal executive officers, and completely inconsistent with there being such barriers.  In particular, if the king’s ability to remove principal executive officers was materially constrained, that would bring into question Blackstone’s unqualified description of supreme and unified executive power.  Blackstone’s failure to say more on the matter in Chapter 9 further confirms that Blackstone, far from being in doubt, was confident that there were not material restrictions on the crown’s power over principal executive officers.

            Finally, in the rest of Chapter 9, Blackstone undertakes a detailed description of the laws relating to local executive officers such as sheriffs and justices of the peace.  If there had been a similar set of laws governing principal executive officers, it would have been very strange for Blackstone to spend so much time on local offices and ignore the major offices.  And if he really did not know what the laws governing major offices were, it would be very strange – for someone writing a supposedly comprehensive treatise of English law – not to investigate.  All this confirms that what Blackstone meant in the disputed passage, and what a reader would likely understand him to have meant, is that principal executive officers “are not in that capacity in any considerable degree the objects of our laws.”

            That said, I agree with Professor Shugerman’s criticism to this extent.  In the Seila Law brief (which I signed and assisted in drafting), this key quote from Blackstone is shortened and clarified with brackets, rather than being quoted in full with a supporting explanation.  On further reflection I think that was not the right way to do it; a quotation of this importance should be set out in full rather than being edited, so that the reader can draw independent conclusions.  In my scholarship (including blog posts!) I try to include long block quotes from key sources for exactly this reason (often over editors’ forceful objections).  A brief, of course, comes with challenging word limits, so the editorial pressure to condense quotations is especially formidable.  But here it should have been resisted.  (Nonetheless, I agree with Professor Wurman that the Blackstone passage meant what the brief said it meant).

In my next post, I’ll briefly address what Blackstone said about local executive officers and add some thoughts and caveats in conclusion.

12/22/2021

Lisa Heinzerling: Nondelegation on Steroids
Michael Ramsey

Lisa Heinzerling (Georgetown University Law Center) has posted Nondelegation on Steroids (NYU Environmental Law Journal, Vol. 29, 2021) (24 pages) on SSRN.  Here is the abstract:

Five sitting Supreme Court justices appear ready, perhaps eager, to adopt a more assertive approach in applying the principle that the Constitution forbids Congress to delegate legislative power to any other person or institution. In several separate opinions in recent cases, these conservative justices appear to converge on at least one new test for evaluating legislative delegations: a delegation is improper when Congress hands off an important policy issue to the executive branch for decision, and the executive uses that delegated power to control private conduct.

The Supreme Court has never struck down a federal statute based on such a test, and it should not start doing so now. Indeed, if the conservative justices truly do not want to substitute their own views of wise public policy for those of the political branches, they should run, screaming, away from the approach they have proposed for legislative delegations. A test based on the justices' perceptions of the importance of the underlying policy issues cannot help but simply reflect the justices' own political preferences. And a test skewed to disfavor regulatory interventions while giving non-regulatory choices a free pass flouts the Court's decision in Whitman v. American Trucking Associations, which unanimously held that an agency cannot fix a statute's nondelegation problem by restricting its own power. An asymmetrical test also reflects a narrow and privileged view of liberty that cannot be rescued by pretending that "the whole of the people" consented to the conservative justices' vision of the separation of powers.

12/21/2021

Blackstone on Removal Power, Part 2: Blackstone on Judicial Tenure
Michael Ramsey

As noted in my opening post in this series, earlier this month Professor Jed Shugerman sharply criticized originalist executive power scholars, and particularly a brief submitted to the Supreme Court by originalist scholars in Seila Law v. CFPB.  One key point of dispute was the extent to which Blackstone’s Commentaries indicates that the eighteenth-century English monarch had removal power over executive officers.

In my first post, I discussed Blackstone’s account of the monarch’s executive power. This post addresses a key area in which, in Blackstone’s description, the king’s removal power was limited: the tenure of judges.  Blackstone’s discussion there is in sharp contrast to his discussion of the king’s unitary power over law execution.

Blackstone begins (p. 257-258):

It is probable, and almost certain, that in very early times, before our constitution arrived at it’s full perfection, our kings in person often heard and determined causes between party and party.  But at present, by the long and uniform usage of many ages, our kings have delegated their whole judicial power to the judges of their several courts; which are the grand depository of the fundamental laws of the kingdom, and have gained a known and stated jurisdiction, regulated by certain and established rules, which the crown itself cannot now alter but by act of parliament.  And in order to maintain both the dignity and independence of the judges in the superior courts, it is enacted by the statute 13 W. III. c.2 [the 1701 Act of Settlement] that their commissions shall be made (not, as formerly, durante bene placito [during pleasure], but) quamdiu bene se gesserint [during good behavior], and their salaries ascertained and established; but that it may be lawful to remove them on the address of both houses of parliament.

He goes on to emphasize the importance of this change in judicial tenure in strong terms:

In this distinct and separate existence of the judicial power, in a particular body of men, nominated indeed, but not removable at pleasure, by the crown, consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power.  (p. 259.)

The significance of these passages for executive removal power is twofold.  First, Blackstone focuses directly on limited removal power as the mechanism for separating judicial power from executive power.  The Act of Settlement’s substitution of good behavior tenure (quamdiu bene se gesserint) for tenure at the king’s pleasure (durante bene placito) assures “the dignity and independence of the judges.” Or as stated in the second quoted passage above, the “distinct and separate existence of the judicial power” arises from the judges being “nominated indeed, but not removable at pleasure, by the crown.”  The king’s executive power formerly included judicial power but because of the Act’s changes in the removal power it no longer did.

Second, Blackstone’s discussion of judicial tenure strongly implies that executive officers, in contrast to judges, did not have protection against removal by the monarch.  Most simply, the reason judges had removal protection was because the Act of Settlement provided it, and the Act did not protect executive officers.  Moreover, in focusing particularly on judges as having a noteworthy protection from executive interference, Blackstone’s description carries the negative implication that executive officers lack that protection.

More fundamentally, read together with Blackstone’s description of unified executive power (which it would be, as they are in the same part of the Commentaries), Blackstone’s account of judicial tenure shows that the English constitutional structure would not accommodate similar tenure protections for executive officers.  As shown in my prior post, Blackstone emphasized the unity of the executive power in the king.  But for Blackstone, the king’s lack of at-pleasure removal power over judges established judicial independence (even though judicial offices were filled by the monarch).  Protections against removal were incompatible with a unified power: they created separation and independence.  Thus the monarch could not have had unified executive power (as Blackstone said he did) without a general power of removal of subordinate executive officers.

In sum (as to my posts so far), Blackstone said (a) the king had unified executive power, and (b) the king lacked judicial power because although he appointed judges he lacked removal power over them (as a result of the Act of Settlement).  I think it clear that an ordinary reader would conclude from this account that the king’s executive power implied removal power over executive officers.

In my next post on the subject, I'll turn to what Blackstone said specifically about removing subordinate executive officers.

12/20/2021

Blackstone on Removal Power, Part 1: Blackstone on the Unitary Executive
Michael Ramsey

Earlier this month Professor Jed Shugerman, in a series of blog posts and a short article, sharply criticized originalist executive power scholars, and particularly a brief submitted to the Supreme Court in Seila Law v. CFPB.  (See here [Originalism Blog discussion], here [Shugerman article] and here [response by Ilan Wurman].)  One key point of dispute was the extent to which Blackstone’s Commentaries indicates that the eighteenth-century English monarch had removal power over executive officers.

The brief (which I signed and assisted in writing) argued that by the Constitution’s original meaning, the President had removal power over executive officers from Article II, Section 1 and 3.  Blackstone’s view of the English system is only a small part of this argument, but it is an important part: as Michael McConnell shows in his great book The President Who Would Not Be King, the Constitution’s framers looked to Blackstone’s descriptions of the executive power in England as a starting point for their design, although they also made very substantial changes.

So in considering presidential removal power, it’s useful -- though not decisive -- to start with Blackstone’s description of the English system.  (Aside: Blackstone’s work was not always reliable as to what the English system actually was, but its wide circulation in America makes it a good indication of what the Constitution’s drafters and ratifiers understood the English system to be.) 

I appreciate Professor Shugerman raising questions about the correct reading of Blackstone, and prompted by his criticism I’ve taken a second and closer look.  As described below and in a series of subsequent posts, on further reflection I think the Seila Law brief was correct in its characterization of Blackstone, though it might have done a better job of supporting its conclusions (one must bear in mind that the length of amicus briefs is limited and Blackstone was only a small part of the brief). 

The relevant discussion in the Commentaries is volume 1, pp. 242-253 (of the 1765 edition).  Here Blackstone makes four key points crucial to the topic of removal, which I’ll discuss in separate posts.

(1) First, Blackstone says that executive power is unified in the king.  His discussion begins:

We are next to consider those branches of the royal prerogative, which invest this our sovereign lord, thus all-perfect and immortal in his kingly capacity, with a number of authorities and powers; in the exertion whereof consists the executive part of government. This is widely placed in a single hand by the British constitution, for the sake of unanimity, strength and dispatch.  Were it placed in many hands, it would be subject to many wills: many wills, if disunited and drawing different ways, create weakness in a government: and to unite those several wills, and reduce them to one, is a work of more time and delay than exigencies of state will afford.  The king of England is therefore not only the chief, but properly the sole, magistrate of the nation: all others acting by commission from, and in due subordination to him: in like manner as, upon the great revolution in the Roman state, all the powers of the antient magistracy of the commonwealth were concentrated in the new emperor… (pp. 242-43.)

This is a powerful statement of the theory of the unitary executive.  The “executive part of government” is “placed in a single hand” – and that unity is justified in terms that anticipate the framers’ arguments for executive unity: “unanimity, strength and dispatch.”  Although it doesn’t say anything directly about removal power, it strongly implies that the king had complete control over executive officers, which (as Madison said later in the 1789 removal debates) necessitates the ability to remove them.

Blackstone then discusses the specific powers “whereof consists the executive part of government.”  After a long discussion of foreign affairs and military powers (pp. 245-257), Blackstone turns to the king’s powers as “fountain of justice and general conservator of the peace of the kingdom.” (p. 257.)  This discussion brings him to matters we think of as execution of the law, in which Blackstone again speaks of the king’s power in unitary terms:

[A]s the public, which is an invisible body, has delegated all it’s power and rights, with respect to the execution of the laws, to one visible magistrate, all  affronts to that power, and breaches of those rights, are immediately offenses against him [i.e., the king], to whom they are so delegated by the public.  His is therefore the proper person to prosecute for all public offenses and breaches of the peace, being the person injured in the eyes of the law.  (pp. 258-259.)

Further:

From the same original, of the king’s being the fountain of justice, we may also deduce the prerogative of issuing proclamations, which is vested in the king alone.  These proclamations have then a binding force, when (as sir Edward Coke observes) they are grounded upon and enforce the laws of the nation.  For, though the making of laws in entirely the work of a distinct part, the legislative branch, of the sovereign power, yet the manner, time and circumstances of putting those laws in execution must frequently be left to the discretion of the executive magistrate.  And therefore his constitutions or edicts, concerning these points, which we call proclamations, are binding upon the subject, where they do not either contradict the old laws, or tend to establish new ones; but only enforce the execution of such laws as are already in being, in such manner as the king shall judge necessary. (p. 261.)

Finally on this point:

The king is likewise the fountain of honour, of office, and of privilege: and this in a different sense from the wherein he is stiled the fountain of justice; for here he is really the parent of them.  It is impossible that a government can be maintained without a due subordination of rank; that the people may know and distinguish such as are set over them, in order to yield them their due respect and obedience; and also that the officers themselves, being encouraged by emulation and the hopes of superiority, may the better discharge their functions: and the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them. …

From the same principle also arises the prerogative of erecting and disposing of offices: for offices and honors are in their nature convertible and synonymous.  All offices under the crown carry in the eye of the law and honour along with them; because they imply a superiority of parts and abilities, being supposed to be always filled with those what are most able to execute them. (pp. 261-262)

These passages confirm that law execution – specifically encompassing prosecution of offences, implementation of laws, and appointment of subordinate executive officers – is part of the unified executive power of the king that Blackstone discussed in his opening description.  They also continue to speak of these specific powers as unified in the king: the king has all the power of prosecution, all the power of issuing proclamations, and all the power over offices.

It’s true, as Professor Shugerman points out, that there’s nothing in these passages directly addressing removal of officers.  As Shugerman specifically emphasizes, the power of “erecting and disposing of offices” is most immediately about appointments, not removals: “dispos[e]” in this context is probably best read to mean generally to “distribute,” not specifically to “withdraw.” In his response to Professor Shugerman, Ilan Wurman – the principal author of the Seila Law brief – acknowledged that the brief read too much into this particular phrase (and I agree).  But the overall implication of these passages seems unmistakably to be (as the brief said) that the king had ultimate control over prosecutions, law implementation, and offices.  That is the essence of the unitary executive.  Most notably, “the law supposes, that no one can be so good a judge of [officers’] several merits and services, as the king himself who employs them” and “the offices [are] supposed to be always filled with those what are most able to execute them.” Thus these passages strongly imply – without saying in so many words – that the monarch had power of removal.  Otherwise, the law execution powers would not be truly united in the monarch, as Blackstone says they are, and the king would not be able to judge and control the service of those he employed, as Blackstone says he does.  And there is not a hint in any of these descriptions that the king’s power in this regard is limited by inability to remove unsatisfactory executive officers.

My next post on the subject turns to a key area in which, in Blackstone’s description, the king’s removal power was limited: the tenure of judges.  His discussion there is in sharp contrast to the foregoing discussion of the king’s unitary power over law execution.

12/19/2021

Travis Crum: The Lawfulness of the Fifteenth Amendment
Michael Ramsey

Travis Crum (Washington University in St. Louis--School of Law) has posted The Lawfulness of the Fifteenth Amendment (Notre Dame Law Review, Vol. 97, 2022) (68 pages) on SSRN.  Here is the abstract:

One of the most provocative debates in constitutional theory concerns the lawfulness of the Reconstruction Amendments’ adoptions. Scholars have contested whether Article V permits amendments proposed by Congresses that excluded the Southern States and questioned whether those States’ ratifications were obtained through unlawful coercion. Scholars have also teased out differences in how States were counted for purposes of ratifying the Thirteenth and Fourteenth Amendments. This debate has focused exclusively on the Thirteenth and Fourteenth Amendments, dismissing the Fifteenth Amendment as a mere sequel.

As this Essay demonstrates, the unique issues raised by the Fifteenth Amendment’s ratification adds important nuance to this debate. New York rescinded its ratification at a time that is difficult to ignore. The Indiana state legislature lacked a quorum when it approved the amendment. Georgia was expelled from the Union not once, but twice—the latter instance after Congress had re-admitted it in July 1868. Georgia was then required to ratify the Fifteenth Amendment as a fundamental condition for its second re-admission. Georgia’s situation differs substantially from the Southern States that were consistently excluded from the Union. Under any theory—whether it endorses a loyal-, reduced-, or full-denominator—at least one of these States’ ratifications is necessary for the Fifteenth Amendment’s validity.

Notwithstanding these issues, the Fifteenth Amendment’s legality is on solid ground. Indeed, the Fifteenth Amendment showcases Reconstruction’s success. The majority of Southern States were represented in the Congress that passed the Fifteenth Amendment and those States ratified it free of any fundamental conditions. Given the demographics and political realities of Reconstruction, the Fifteenth Amendment was the first constitutional provision whose ratification was clearly attributable to the votes of Black men. More broadly, the fight to ratify the Reconstruction Amendments demonstrates that democracies must sometimes take extraordinary steps to protect themselves from secessionist, racist, and anti-democratic forces.

12/18/2021

Matthew Schafer: Liberty, Libel, and the First Amendment
Michael Ramsey

Matthew Schafer (Independent; Fordham University School of Law) has posted Liberty, Libel, and the First Amendment (60 pages) on SSRN.  Here is the abstract:

In recent years, the Supreme Court’s resort to originalism is personified by resort, ad infinitum, to the English jurist William Blackstone. What Blackstone thought must have been what the Founders thought. While the Court has resorted to Blackstone in many contexts, it has largely ignored him in its freedom of press cases – not least because Blackstone’s views on liberty of the press were quite narrow. In the Commentaries on the Laws of England, he says only that “liberty of the press . . . consists in laying no previous restraints upon publications.” Were this all the First Amendment protected, much of the Court’s First Amendment jurisprudence would have to be thrown out. Nevertheless, Justices Clarence Thomas and Neil Gorsuch have recently invoked Blackstone in their broadsides on one of the Court’s defining First Amendment decisions, New York Times v. Sullivan.

This article questions these Justices importation of Blackstone into First Amendment jurisprudence by posing two questions: did early legal commentators understand Blackstone’s views on liberty of the press and the common law of libel to be the American view? And, if not, why not? It demonstrates that long-standing assumptions that these commentators adopted Blackstone’s narrow views about liberty and libel are incorrect. In fact, only one of these commentators explicitly adopted his approach. This article also uncovers the reason for this rejection: a stubborn commitment to republicanism that survived even in the largely conservative legal academy of the nineteenth century. It concludes that Thomas and Gorsuch’s reliance on Blackstone is thus ahistorical and anti-revolutionary. In fact, it argues that far from drawing into doubt Sullivan, the reasoning of these commentators supports the Court’s later expansion of First Amendment protections into the law of libel.

12/17/2021

Scott Gerber on the Supreme Court Commission Report
Michael Ramsey

At The Hill, Scott Gerber (Ohio Northern): The Presidential Commission on the Supreme Court failed the president,  From the core of the argument: 

What I found most troubling about the commission’s report was how superficial the discussion of judicial independence was. 

...

Most tellingly, the report fails to note that an independent judiciary is the American contribution to separation of powers theory. John Adams was the American founding’s most sophisticated political theorist and when he modified Montesquieu’s conception of the separation of powers by developing what can be fairly termed the political architecture of an independent judiciary, he articulated an idea that helped make possible the court’s power to void laws that conflict with the Constitution. Adams’s contribution to the notion that all government power must be checked and balanced is arguably as significant as that of the French baron whose work inspired him and the other American Founders.

Adams published his most systematic statement about judicial independence in his 1776 pamphlet “Thoughts on Government.” The pamphlet — a clarion call for separation of powers written in response to Thomas Paine’s recommendation in "Common Sense," during the initial rush of state constitution-making, that all government power be vested in a unicameral legislature — insisted that “The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skillful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that.”

Adams recommended that judges be “nominated and appointed by the governor, with the advice and consent of council.” However, he argued for more than merely making the judiciary a separate branch of government. He called for stable judicial compensation and tenure so long as judges behave well: “[T]hey should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.” Adams also insisted that judges who misuse their offices should be impeached by the “house of representatives … before the governor and council” and, “if convicted, should be removed.”

Adams was serving as a diplomat in England during the framing of the federal Constitution of 1787. Although the Constitution excluded the president from participating in the impeachment of other government officials, it otherwise contained principles identical to Adams’s proposal, which was widely known by the delegates to the constitutional convention that met in Philadelphia: The Supreme Court is a separate branch of government, the justices enjoy life tenure during good behavior, and their salaries cannot be diminished while they are in office.

... Suffice it to say that because the commission’s report says almost nothing about the origins of judicial independence in America, I must regrettably join the chorus that considers the commission to have failed the president.

I agree this is a fair criticism of the first part of the report, although I don't agree that it goes so far as to make the report as a whole a failure.  The report notes that individual commissioners, though voting to approve the report as a whole, may well have felt that they would have written some parts of it differently.  This is a part I would have written differently. 

(Also, as an aside, the independent judiciary isn't solely an American/Adams-ian idea -- the separation of the executive and the judiciary in Anglo-American practice began with the Act of Settlement in 1701, which gave English judges lifetime tenure during good behavior rather than merely at the king's pleasure.  Blackstone [v.1, p. 258 of the Commentaries] describes the Act as securing the "dignity and independence of the judges.")

UPDATE:  Professor Gerber comments:

Re: your comments about Blackstone. Here is my short take on the intellectual history (it's from a Green Bag micro-symposium).  My book A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford Univ. Press) addresses the question in detail.

12/16/2021

Podcast: Akhil Amar and Ed Whelan on the Texas Abortion Decision [Updated]
Michael Ramsey

On Professor Ahkil Amar's "America's Constitution" podcast, a discussion with Ed Whelan (Ethics & Public Policy Center/Bench Memos).  From the podcast description:

The Supreme Court isn’t done with abortion yet, as it marks our “silver episode” unveiling with a pair of rulings on the Texas abortion law, SB8.  The rulings themselves may not be long remembered, but the opinions contained sentences that shocked Professor Amar.  In a happy coincidence, the Friday rulings coincided with a Friday taping, and we happened to have a special guest - Ed Whelan, creator of the well-known “Bench Memos” legal blog and Distinguished Senior Fellow of the Ethics and Public Policy Center.  We dissect the very revealing statements by Chief Justice Roberts, Justice Sotomayor, and others, on an eventful day.

Via Ed Whelan at Bench Memos, who adds:

The podcast is titled “The Court Astonishes,” and the promotional summary states that “the opinions contained sentences that shocked Professor Amar.” I’ll highlight that those shocking—“astonishingly troubling,” as Amar puts it—sentences were entirely in the dissents of the Chief Justice and of Justice Sotomayor and involved their mistaken invocations of Marbury v. Madison and of the pernicious myth of judicial supremacy. The listener will discover that Amar’s assessment is deeply compatible with my recent posts on “Sotomayor’s ‘Analogous Sentiments’” and “John Roberts vs. John Roberts on Marbury and Judicial Supremacy.”

UPDATE: At Volokh Conspiracy, Josh Blackman comments, with quotations from the podcast: Akhil Amar Dismantles The Flawed Dissents in WWH v. Jackson.

12/15/2021

Symposium on "The Original Meaning of the Fourteenth Amendment" [Updated]
Michael Ramsey

At Law & Liberty, a symposium on The Original Meaning of the Fourteenth Amendment by Randy Barnett and Evan Bernick (Belknap Press 2021).  From the introduction:

The Fourteenth Amendment has proven to be one of the most difficult parts of the Constitution to interpret. For over a century, controversy has swirled over how exactly the Due Process, Privileges or Immunities, and Equal Protection clauses limit the policies of states. That uncertainty hasn’t stopped the Supreme Court from viewing it as one of the most sweeping and transformative amendments. Randy Barnett and Evan Bernick have recently written an important new book on the Amendment, arguing that while the Court has mostly gotten the original meaning of the Amendment wrong, it has nevertheless stumbled into many correct outcomes. We asked four Law & Liberty contributors to weigh in on their interpretation.

And here are the contributions:

“Law,” “Citizens,” and 1868, by Christopher R. Green (Mississippi)

A Radical Original Meaning, by Julia D. Mahoney (Virginia)

Another Original Meaning of the Fourteenth Amendment, by Jesse R. Merriam (Patrick Henry)

From Comity to Equality, by Ilan Wurman (Arizona State)

ANDREW HYMAN adds:

12/14/2021

Josh Blackman & Seth Barrett Tillman: Is the President an "Officer of the United States" for Purposes of Section 3 of the Fourteenth Amendment?
Michael Ramsey

Josh Blackman (South Texas College of Law Houston) and Seth Barrett Tillman (National University of Ireland, Maynooth (NUI Maynooth) - Faculty of Law) have posted Is the President an ‘officer of the United States’ for Purposes of Section 3 of the Fourteenth Amendment (15(1) N.Y.U. J.L. & Liberty 1 (2021)) (54 pages) on SSRN.  Here is the abstract:

Section 3 of the Fourteenth Amendment was ratified in 1868, in the wake of the Civil War. This provision bars certain people who “engaged in insurrection” from serving in certain federal and state positions. For a time, Section 3’s meaning was a matter of substantial debate. And subsequently, during the twentieth century, this provision fell into desuetude.

Now, Section 3 occupies a critical place in constitutional discourse. On January 13, 2021, the House of Representative approved an article of impeachment against President Trump that invoked Section 3. And there is pending legislation that purports to put Section 3 into effect. Its sponsors contend that the bill could render Trump ineligible to serve a second term. Moreover, state election officials may rely on Section 3 to keep Trump off the ballot. All of these legal strategies, however, elide over a critical threshold question: Was Trump covered by Section 3?

The structure of Section 3 of the Fourteenth Amendment is a bit complicated. But for our purposes, the inquiry is narrow: When Trump took his Article II presidential oath, was he “an officer of the United States”? If the answer is “yes,” then he is subject to Section 3, and potentially can be disqualified from serving a second term. If the answer is “no,” then he is not subject to Section 3, and cannot be disqualified from serving a second term pursuant to Section 3. In our view, there is some substantial reason to think the President is not an “officer of the United States.” It follows that President Trump, who swore only one constitutional oath, does not fall within the scope of Section 3. Therefore, he cannot be disqualified pursuant to this provision.

This article will proceed in six parts. Part I will contend that the phrases “officer of the United States” and “office . . . under the United States” in Section 3 refer to different categories of positions. Part II will analyze the phrase “officer of the United States,” which is used in the Constitution of 1788 and in Section 3 of the Fourteenth Amendment, which was ratified in 1868. Part III will show that the meaning of the phrase “officer of the United States” did not drift from 1788 through 1868. There is substantial evidence from both eras that the President was not considered an “officer of the United States.” Part IV will recount longstanding Executive Branch opinions, which affirmed that elected officials like the President are not “officers of the United States.” Part V will respond to recent academic arguments suggesting that the President is an “officer of the United States” for purposes of Section 3. Finally, part VI will chart how the courts, and not Congress, will likely have the final say about whether President Trump is subject to Section 3 of the Fourteenth Amendment.

UPDATE:  At Legal Theory Blog, Larry Solum says: "Highly recommended."

ANDREW HYMAN ADDS: At Prawfsblawg, see this December 21 blog post: Section 3 and the Presidency by Professor Gerard Magliocca. 

12/13/2021

Another Look at Paul Waldman’s Criticism of Originalism/Originalists
David Weisberg

Prof. Ramsey’s recent post, “Originalism and a Constitutional Prohibition on Abortion,” begins with the assertion that, “[a]mong the harshest criticisms of originalism is that it is a mere cover for judges enacting the policy preferences of the conservative legal movement.”  I think it would be more correct to say that among the harshest criticisms of orginalists is that they use originalism as a mere cover.  There is an important difference.

Paul Waldman, writing in the Washington Post, claims that the recent arguments in Dobbs reveal that Trump’s three Supreme Court nominees perpetrated “a lie, scam, con” when they testified that originalism, as they understood it, was a judicial philosophy that was neutral as to the outcome of any particular legal case or issue.  That is not a criticism of originalism.  It is instead a criticism of particular individuals who identify as originalists.

Prof. Ramsey, responding to Waldman, says that any result in Dobbs that weakens or overturns Roe and its progeny “actually shows the opposite of Waldman’s claim,” because most conservatives would want to prohibit all abortions except in circumstances of mortal physical danger to the woman.  Nevertheless, such a prohibition could never be part of a decision in Dobbs or any other case decided by originalists, since “the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution’s original meaning does not protect unborn life.” 

I’d like to play devil’s advocate here and make two points.  First, I think Waldman would say that “the overwhelming mainstream originalist position” that Ramsey refers to is a sham and a lie, just like the testimony Trump’s nominees provided to the Judiciary Committee.  A result in Dobbs that weakens or overturns the Roe line of cases is one step, Waldman would say, on the road to barring abortions entirely.  Although originalists now say the Constitution does not protect unborn life, when they sense the public is more ready to accept the opposite position the Court will issue such a decision, because originalists act in bad faith all the time.  This position is certainly consistent with Waldman’s original complaint about originalist nominees testifying in bad faith.

Secondly, Prof. Ramsey asserts: “It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.”  Here things get particularly dicey.  Suppose a living-constitutionalist argued that, because the ideal liberal policy is no state or federal restrictions whatsoever on abortions, the Court’s opinions in Roe and its progeny—which do permit increasingly rigorous state regulations as pregnancy approaches term—must therefore be deemed to be soundly grounded in the Constitution and not in the policy preferences of the various Court majorities.  I think originalists/textualists would not accept that argument.

When one questions the good faith of the practitioners of a legal theory, rather than analyzing and criticizing the legal theory itself, a disheartening symmetry emerges.  Each side can say of the other: we do not believe that the reasons stated in your judicial opinions or your scholarly articles are your true reasons; the one true reason is your policy preference.  Similarly, each side can say: in deciding Case X, we did not adopt the most extreme position on the spectrum of policy preferences; this proves our decision is grounded in law and not in policy preference.  And the “liberal” side says that weakening or overturning Roe is a step toward a future originalist decision that the Constitution bans abortions in almost all circumstances, while the “conservative” side says that Roe itself is a first step toward a future living-constitutionalist holding that the Constitution prohibits any federal or state regulation of abortion.

The lesson, I think, is this: attacking the good faith and sincerity of an opponent is ultimately a dead end, because precisely the same attack we make on others can be made on us.  Waldman’s approach cannot be shown to be factually incorrect—we cannot enter the minds of those with whom we disagree (or even agree) to determine whether their opinions and decisions are made in good faith.  But his approach can be shown to be a waste of everyone’s time.   

Eric Segall on Abortion and the Constitution's Text [Updated with a Response from Professor Segall]
Michael Ramsey

At Dorf on Law, Eric Segall: Abortion, Guns, and the Irrelevance of Text to Constitutional Law.  From the introduction:

During the Supreme Court's oral argument in Dobbs v. Jackson Women's Health Organization last week, there was relatively little mention of constitutional text. For over 50 years, conservative critics of Roe and Casey have argued that these cases were wrongly decided because the right to terminate a pregnancy is not in the Constitution. Yet, during the Dobbs argument, the conservative Justices seemed to just assume that Roe and Casey were incorrect and argued instead about whether viability is an appropriate or arbitrary line (Roberts), whether changes in adoption access undercut abortion jurisprudence (Barrett), and whether the states could criminalize reckless behavior by pregnant women (Thomas). But arguments about or referring to constitutional text were largely absent.

One explanation for the lack of substantial discussion about text by the Justices might be that they agree with Professor Ilya Somin who recently argued over at the Volokh Conspiracy that, although he takes no position on whether the right to choose should be constitutionally protected, the fact that this right is not explicitly mentioned in the Constitution does not support the overruling of Roe and Casey.

Professor Somin said the following:

It is true that a right to abortion is nowhere specifically mentioned in the Constitution. If it were, that would have made Roe and subsequent cases much easier to decide. But it doesn't necessarily follow that there is no constitutional right to abortion.

Some parts of the Constitution establish very clear and specific rules, such as that each state gets two senators, and that the president must be at least 35 years old. But many others state broad, general principles that courts must then apply to specific cases.... The case for a right to abortion comes down to whether that right falls within the scope of broadly phrased parts of the text, such as the 'liberty' protected by the Due Process clauses of the Fifth and Fourteenth Amendments, or the 'equal protection of the laws' (also part of the Fourteenth Amendment). Some defenders of Roe argue that a right to abortion is necessary to ensure 'equal protection' for women.... None of the above by itself determines whether the Constitution protects a right to abortion (an issue I will leave to others). But it can help clear away some of the underbrush of bad arguments surrounding the question. The issue cannot be resolved simply by pointing out that abortion isn't specifically mentioned in the Constitution.

Professor Somin is right and could also have pointed to many Supreme Court cases either protecting rights not mentioned in the Constitution or establishing limits on federal power also nowhere to be found in the constitutional text. ...

The reality is that arguments deriving from constitutional text cannot justify either protecting or denying a right for women to terminate the pregnancies. Values, principles, and politics inevitably dictate how judges rule on the abortion question.

I think this is partly right but mostly wrong as a matter of original meaning.  I agree with Professors Segall and Somin that the fact that abortion isn't specifically mentioned in the Constitution's text does not conclusively prove that it is not protected by the Constitution's original meaning.  As Professor Somin says, parts of the Constitution's text, including most of Section 1 of the Fourteenth Amendment, are written in general language without specifics.  Yet that general language must have meaning, protecting rights that are not specifically mentioned by, but are encompassed within, its general terms.

I don't think any originalist judge or scholar disputes that conclusion.  But that doesn't mean that the Constitution's text isn't relevant to the question of abortion rights.  In an original meaning analysis, if there is a right to abortion in the Constitution, it must arise from some constitutional text, whether general or specific.  Of course the right need not be mentioned specifically (again, no one disputes this), but it nonetheless must be encompassed within some text.  The originalist argument against abortion rights is that there is no constitutional text, specific or general, whose original meaning encompasses abortion rights. 

Justice Thomas pressed this point in the Dobbs oral argument, asking what text were the respondents relying on to establish an abortion right.  This was not a simplistic suggestion that abortion isn't specifically mentioned so there can be no such text. Of course Justice Thomas agrees that general text can establish rights without specifically mentioning them.  But he wanted to know: which general text did respondents think established the specific right, and why did they think so?  (He did not get much of an answer.)

The other originalist-oriented Justices did not press the textual point, but I don't think at all that it was because "they agree with Professor Ilya Somin ... [that] the fact that this right is not explicitly mentioned in the Constitution does not support the overruling of Roe and Casey."  Rather, I presume that they (like Justice Thomas) think that the original meaning of the general language of the Fourteenth Amendment does not encompass an abortion right -- not because abortion isn't specifically mentioned, but because the text, though general, doesn't extend to abortion.  Thus the main issue, on which they focused, was whether stare decisis counselled against overruling a precedent that (in their view) could not be reconciled with the Constitution's text.  This does not show that the text was irrelevant; rather, it shows that the Justices did not think there was a substantial textual argument to the contrary (and respondents, who also focused mostly on stare decisis, did not give much reason to think otherwise).

In sum, the original meaning of constitutional text is highly relevant to the originalist position on abortion.  That the text in question is general rather than specific does not change that conclusion.

UPDATE:  ERIC SEGALL responds: 

Thanks to Mike for again discussing my work (and Ilya Somin’s) regarding text and abortion. Mike’s conclusion is that “In sum, the original meaning of constitutional text is highly relevant to the originalist position on abortion.  That the text in question is general rather than specific does not change that conclusion.” 

I would ask Mike, maybe rhetorically, what does he mean by “general” here. Most litigated Constitutional cases, maybe all, derive from “general text.” But whether it is color-blindness, or anti-commandeering, or equal state sovereignty, the Court uses hopelessly general text to announce rules. The right to abortion could come from the 14th Amendment (due process, equal protection, or privileges or immunities), or the 9th Amendment. But arguments about text won’t solve the issue just like arguments about text don’t give us the three non-textual constructions listed above. To get to those rules, we need history, tradition, values, consequences, and precedent. So too with abortion, and virtually all of constitutional law. In other words, the presence or absence of text is mostly irrelevant given the imprecise nature of our litigated constitution.

12/12/2021

Richard Boldt on Charles Black on Constitutional Structure
Michael Ramsey

Richard C. Boldt (University of Maryland Francis King Carey School of Law) has posted Constitutional Structure, Institutional  Relationships and Text: Revisiting Charles Black’s White Lectures (54 Loyola of Los Angeles Law Review 675 (2021)) (59 pages) on SSRN.  Here is the abstract: 

Fundamental questions about constitutional interpretation and meaning invite a close examination of the complicated origins and the subsequent elaboration of the very structure of federalism. The available records of the Proceedings in the Federal Convention make clear that the Framers entertained two approaches to delineating the powers of the central government relative to those retained by the states. The competing approaches, one reliant on a formalist enumeration of permissible powers, the other operating functionally on the basis of a broad dynamic concept of state incompetence and national interest, often are presented as mutually inconsistent narratives. In fact, these two approaches can be understood, at the founding and at critical junctures along the way, as capable of coexisting in a complex, sometimes uncomfortable, arrangement that draws both upon structural and specific textual elements of grant or prohibition to police the line between central government powers and those retained by the states.

Some of the specific provisions of grant or prohibition in the Constitution have held up well over the course of our nation’s history, but others have fallen out of alignment with the underlying economic, social, and political context within which the Constitution must operate. In those instances, significant pressure has been placed on the Necessary and Proper Clause to bring constitutional doctrine into alignment with contemporary circumstance and, indirectly, with the deeper structures and relationships that ground the constitutional order. Consistent with the insights offered decades ago by Professor Charles Black, this Article argues that the Supreme Court better serves the constitutional order when it draws inferences directly from those deeper structures and institutional relationships, which were embedded in the original Constitution and which have endured and been reaffirmed over time, and avoids a strained reading either of the enumerated power itself or of the Necessary and Proper Clause.