Programming Note: Blog Holiday
Michael Ramsey

I'll be taking a brief break from blogging for personal reasons for the next couple of weeks.  (Hope I don't miss any big news from the Supreme Court.)  Thanks to everyone for reading, and see you in July.

Nikolas Bowie & Norah Rast: The Imaginary Immigration Clause
Michael Ramsey

Recently published, in the Michigan Law Review, Nikolas Bowie (Harvard Law School) & Norah Rast (Harvard Law School J.D. '21): The Imaginary Immigration Clause (120 Mich. L. Rev. 1419 (2022)).  Here is the abstract: 

For the past century, the Supreme Court has skeptically scrutinized Congress’s power to enact healthcare laws and other domestic legislation, insisting that nothing in the Constitution gives Congress a general power to “regulate an individual from cradle to grave.” Yet when Congress regulates immigrants, the Court has contradictorily assumed that Congress has “broad, undoubted power” to do whatever it thinks necessary—even though no clause of the Constitution gives Congress any specific immigration power. The Court has explained this discrepancy with reference to the Chinese Exclusion Case, an 1889 decision in which it allegedly held that Congress possesses “sovereign” power to regulate immigrants beyond Congress’s ordinary enumerated powers. Absent this imagined Immigration Clause, the Court has offered no explanation for its anomalous review of Congress’s immigration laws.

This Article contests this traditional reading of the Chinese Exclusion Case as well as the consequences that have followed from it. Throughout the first century of congressional and judicial resistance to Congress’s power to regulate immigration, there was a broad consensus that Congress had no freestanding power to regulate immigrants beyond its ordinary powers to regulate everyone else. Far from disrupting this consensus, the author of the Chinese Exclusion Case adhered to it before, during, and after his opinion. It was not until the mid-twentieth century that the Supreme Court retroactively misread the Chinese Exclusion Case to authorize an extraconstitutional federal immigration power. Yet these misreadings have never explained why the Court invalidates ordinary domestic legislation even as it defers to federal immigration laws.

In contrast with scholars and immigration advocates who have sought to apply the Court’s ordinarily skeptical scrutiny to the immigration context, we argue that this history highlights the flaws of relying on judicial review to protect disenfranchised minorities from a hostile and overzealous Congress. This review has functioned to muffle the serious legislative debate that animated the resistance to the first century of federal immigration restrictions. Rather than ask the courts to limit federal immigration laws just as they limit federal healthcare laws, we therefore argue that Congress itself should rethink whether Article I permits the expanse of its immigration laws in effect today.

I agree that the Supreme Court hasn't adequately explained where Congress' power over immigration comes from, and that the idea of extraconstitutional sovereign power over immigration is untenable.  My view of what follows from that conclusion is somewhat different from the authors'.

(Via Dan Ernst at Legal History Blog.)


Anita Krishnakumar on Textualism and the Supreme Court's Decision in George v. McDonough
Michael Ramsey

At SCOTUSblog, Anita Krishnakumar (Georgetown): In far cry from usual textualism, court rejects veteran’s attempt to reopen a benefits denial based on legal error.  From the introduction: 

[T]he Supreme Court [last week] ruled 6-3 that a VA benefits decision that was based on an agency regulation in effect at the time the decision was rendered does not constitute “clear and unmistakable error” even if the agency regulation is later deemed to conflict with the text of the relevant benefits statute...

Perhaps the most striking feature of [Justice] Barrett’s opinion for the court (and the two dissenting opinions from Justices Sonia Sotomayor and Neil Gorsuch) is how little it focuses on the text of the relevant statutes. Barrett’s opinion does nod at the text, observing that the modifiers “clear” and “unmistakable” indicate that only a narrow category of errors are covered by the statute. The opinion also cursorily notes that the “statutory structure” suggests a narrow construction of covered errors because the provision creates an exception to the norm of finality for veterans benefits decisions. 

But Barrett quickly sidelines these text-based observations as “general contours” and moves on to her principal argument, which is that “a robust regulatory backdrop fills in the details” of the statute’s meaning. Specifically, Barrett argues that the phrase “clear and unmistakable” error is a term of art — i.e., a term with a specialized legal meaning. In this case, Barrett claims that “clear and unmistakable error” is a phrase that “ha[s] a long regulatory history” and concludes that Congress deliberately codified that longstanding history and meaning when it employed the phrase in the statute at issue. Barrett goes on to explain that longstanding agency practice and precedent establish that the term “clear and unmistakable” error does not encompass subsequent “changes in law” or “changes in the interpretation of law” — and that the Federal Circuit ruling invalidating the agency regulation upon which George’s denial decision was based is a mere “change in the interpretation of the law.”  

The court’s reliance on agency practice — a pragmatic, atextual interpretive source — is surprising, as is its emphasis on Congress’ supposed expectation that that agency practice would be incorporated, or codified, into the relevant statute...

I have a different view.  Rather than thinking of the majority opinion as "atextual," I see it as adopting a legal meaning of the text over an ordinary meaning of the text.  I don't think that background agency practice is a "pragmatic, atextual interpretive source" in this case.  Rather, it is a way of understanding the meaning of the key words in the statute (a textualist inquiry), which (in Justice Barrett's view) adopted their meaning from prior agency practice.  Put another way, as both Justice Barrett and Professor Krishnakumar say, the relevant phrase is arguably a "term of art."  That's not an "atextual" analysis -- its just a way of understanding what the text means when the text adopts a specialized legal term.  (Of course, it's a separate question whether the text should be understood as adopting a specialized legal term or should be given ordinary nonlegal meaning, but that's a debate within textiualism.)


Rebecca Zietlow: The Transgressive Constitutionalism of Fugitives From Slavery
Michael Ramsey

Rebecca E. Zietlow (University of Toledo College of Law) has posted Freedom Seekers: The Transgressive Constitutionalism of Fugitives From Slavery (Notre Dame Law Review, Vol. 97, No. 4, 2022) (36 pages) on SSRN.  Here is the abstract:

In the years leading up to the Civil War, fugitives from slavery ("freedom seekers") put their lives on the line to improve their own status and that of their families in their quest for freedom. Freedom seekers were constitutional actors who made constitutional claims with their actions when they transgressed borders from slave states to free spaces, and across Civil War battle lines to volunteer for the Union army. By transgressing these borders, fugitives from slavery triggered constitutional controversy over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, and made rights claims for themselves with their actions. Their actions destabilized the structure of our country, leading to the Civil War. After the war, members of the Reconstruction Congress cited the sacrifices of freedom seekers as they debated measures to protect the rights that they claimed.

Freedom seekers engaged in civil disobedience, resisting law that they believed to be unjust and inhumane. In the North, free Black people and their white allies supported freedom seekers by engaging in civil disobedience of their own. The transgressive actions of freedom seekers sparked constitutional controversy during the antebellum era over issues of interstate comity, federalism, citizenship rights, and fundamental human rights, Their actions were central to the antislavery struggle, and their sacrifices send a profound message which inspired other activists and strengthened their cause. Eventually, the Reconstruction Congress enshrined their claims into constitutional law. Until now, fugitives from slavery have largely been absent from virtually all of the legal scholarship about the antebellum and Reconstruction eras. This article seeks to remedy that oversight.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.  Download it while it's hot!" and names it "Download of the Week".)


Judge David Stras on Unconstitutional Seizures
Michael Ramsey

Judge David Stras (8th Circuit) has a strong originalist concurrence on unconstitutional seizures in Davis v. Dawson (decided last month but just pointed out to me).  The majority holds:

Des Moines Police officers, lacking probable cause, took relatives of a stabbing victim to the station, holding them for over three hours despite their repeated requests to leave. Meanwhile, the victim died. The family sued. The district court denied qualified immunity, ruling for the family on their claims of illegal seizure and false arrest. The officers appeal. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

The majority applies modern Supreme Court and lower court caselaw to find the rights clearly established for qualified immunity purposes.  From Judge Stras, concurring:

Rarely do rights come more clearly established. The Des Moines Police Department apparently thinks it is constitutional to seize, transport, and interrogate innocent witnesses based on “societal needs.” Appellants’ Br. 30. This type of “forcible and compulsory extortion of a [person’s] own testimony”—frequently a feature of writs of assistance and general warrants—was repudiated by the Fourth Amendment. Boyd v. United States, 116 U.S. 616, 630 (1886); see also Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765). Like the court, I would reject the call to revive them, and I write separately to explain just how clearly established this right really is.


"Writs of assistance" were the historical equivalent of a “blank check.” Starting out as a way of enforcing English smuggling laws, they initially allowed so-called “customs men” to search homes for stolen or smuggled imports. See Carpenter, 138 S. Ct. at 2239 n.6 (Thomas, J., dissenting) ...; see also M.H. Smith, The Writs Of Assistance Case 17–19 (1978) (describing the origins of the writ of assistance). But they soon expanded to other situations and conferred breathtaking powers on the government officials who held them. Among their features were the authority to conduct indiscriminate searches of people and property, and in certain cases, conscript individuals to “‘aid[] and assist[]’ the Sheriff.” Smith, supra, at 95 n.1 (quoting Commissions Issued by the Province of Pennsylvania 36 ...; see also James Otis, Against Writs of Assistance (Feb. 24, 1761) (observing that “a person with this writ . . . may enter all houses, shops, etc., at will, and command all to assist him”). They were premised on the notion that the Crown’s interests stood above all others. See Smith, supra, at 426 (“[A]ll his Majesty’s good Subjects are required to be aiding and assisting in the due Execution of said Writ or Warrant of Assistance.” ...

It is unsurprising that opposition to them became one of the organizing principles of the Revolution. See 6 Encyclopaedia of the Laws of England, General Warrant, 63 (A. Renton ed., 1898) (“The use of the writ of assistance was one of the causes of the revolt of the American colonies.”). ...

Meanwhile, across the Atlantic, English courts issued a series of decisions that only sharpened colonial opposition. There were a number that had an impact, see, e.g., Wilkes v. Wood, 19 How. St. Tr. 1153 (C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763); Leach v. Money, 19 How. St. Tr. 1001 (K.B. 1765), but perhaps none more so than Lord Camden’s opinion in Entick v. Carrington, 19 How. St. Tr. 1029 (C.P. 1765).

The warrant in Entick “act[ed] against every man, who [was] so described in the warrant, [even] though he be  innocent.” 19 How. St. Tr. at 1064 (emphasis added). The officers, who broke into Entick’s home and seized his papers, defended their actions by arguing that this warrant, and others like them, were critical for “detecting offenders [and] discovering evidence.” Id. at 1030, 1073. This argument, echoed today by the Des Moines Police Department, was no more successful then. Lord Camden pointed out that general warrants arose “from a decree of the Star-Chamber,” giving them less-than-noble origins, and then “crept into the law by imperceptible practice.” Id. at 1067, 1069. No “authority in [the] book[s],” including the “written law,” supported them. Id. at 1066, 1072. Nor could “such a power be justified by the common law.” Id. at 1072. The warrant was, in Lord Camden’s words, “illegal and void,” and Entick had an action for trespass against the officers, who had invaded his right to be “secure [in his] property.” Id. at 1066, 1074. Entick was “welcomed and applauded by the lovers of liberty in the colonies.” Boyd, 116 U.S. at 626 (chronicling its support). Many regarded Lord Camden’s decision “as one of the permanent monuments of the British constitution.” Id. ...

I think this is an great way for originalist-oriented lower court judges to bring originalism into their cases.  Originalism isn't just about challenging nonoriginalist doctrines.  It should also be (as here) about confirming and celebrating the originalist foundations of longstanding doctrines we take for granted. And it reminds us that our rights come from the Constitution, not just from what the Court has said about it.


A Puzzle About the Word "Prohibiting" in the Free Exercise Clause
Will Foster

[Ed.: For this guest post we welcome back Will Foster, currently a student at Columbia University.]

In 1986, the Reagan Justice Department under Attorney General Ed Meese published a comprehensive report on the original meaning of the Constitution’s Free Exercise Clause. The document, entitled “Religious Liberty under the Free Exercise Clause,” carefully evaluates the text and history of the Free Exercise Clause. One of the report’s key conclusions -- that the Free Exercise Clause protects against generally applicable laws, not only laws targeted at religion -- is today gospel for many originalists and conservatives. But another important conclusion the Office of Legal Policy reached has been all but forgotten: To state a Free Exercise Clause claim, one must “identify state action ‘prohibiting’ -- forbidding or preventing -- the exercise of religion as opposed to merely discouraging it.”

The Supreme Court, needless to say, has soundly rejected that view. In Trinity Lutheran, Missouri did raise the argument that “merely declining to extend funds to Trinity Lutheran does not prohibit the Church from engaging in any religious conduct or otherwise exercising its religious rights.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017). But Chief Justice Roberts’ majority opinion quickly dispatched that argument by citing precedent. Ibid. Among those precedents was Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 450 (1988), which stated that “this Court has repeatedly held that indirect coercion or penalties on the free exercise of religion, not just outright prohibitions, are subject to scrutiny under the First Amendment.” A case before the Supreme Court right now challenges Maine’s refusal to fund religious schools as part of a tuition assistance program; the Court is widely expected to invalidate that discrimination under the Free Exercise Clause.

This view could turn out to be correct, but it is not an easy question. Founding-era dictionaries suggest that the word “prohibit” had “essentially the same meaning in 1791” as it does today. Fulton v. Philadelphia, 141 S. Ct. 1868, 1896 (2021) (Alito, J., concurring in the judgment). As Justice Gorsuch wrote for the Court just this Wednesday in an unrelated statutory case, “to prohibit something means to ‘forbid,’ ‘prevent,’ or ‘effectively stop’ it, or ‘make [it] impossible.’” Ysleta del Sur Pueblo v. Texas, 596 U.S. ___ (2022) (slip op., at 9). Samuel Johnson’s 1755 dictionary likewise defined “to prohibit” as “[t]o forbid; to interdict by authority,” or “[t]o debar; to hinder.” Noah Webster’s 1828 dictionary defined the word in similar, though slightly more verbose, terms: “To forbid; to interdict by authority; applicable to persons or things, but implying authority or right,” or “[t]o hinder; to debar; to prevent; to preclude.” See also Fulton, 141 S. Ct. at 1896, n. 30 (citing additional dictionaries). Both Johnson and Webster included illustrative examples under the two definitions (more on that in a moment). Based largely on dictionary definitions, the Report to the Attorney General concluded that “‘prohibiting’ connotes a finality, certitude, or damning not present in ‘abridging,’ which connotes limitations falling short of the finality of prohibition or prevention.”

Seizing on the word “hinder” in the above definitions, Professor Michael McConnell argued in a 1991 Harvard Law Review article that “prohibit” in the First Amendment means the same thing as “infringe” or “abridge,” and that the Free Exercise Clause protects against laws that even “discourage” religious practice. (Meese apparently now agrees; in a footnote in a recent amicus brief, he cited McConnell and explicitly renounced the conclusion on this point from the 1986 report.) But McConnell’s attempt to respond to the Report to the Attorney General is not entirely persuasive. For the “hinder” definition of “prohibit,” both Johnson and Webster cited the following lines from Milton’s Paradise Lost: “Gates of burning adamant / Bar’d over us, prohibit all egress.” In context, it seems quite clear to me that Milton means not merely that the residents of hell were disadvantaged in some way or disincentivized from leaving -- Milton means they were completely prevented from leaving.

The two definitions Johnson and Webster provide thus line up perfectly with the 1986 report’s conclusion: “Prohibit” can mean either forbidding or preventing. As the report explained, “Forbidding in this context simply means to make an act unlawful, while preventing means to make the performance of an act impossible. For example, the government may prohibit attendance at college by either making it unlawful to attend school (forbidding) or by compelling would-be students to do something else in its place, for example, enter the armed forces (preventing). The first use is a direct prohibition on attending college. The second, though indirect, has the same effect.” Thus, to make sense of the two definitions of “prohibit,” there is no need to conclude that one of them encompasses mere disincentives.

To be sure, it is possible that educated members of the public at the time of the First Amendment’s ratification would have understood the phrase “prohibiting the free exercise [of religion]” as a sort of term of art, with meaning independent of the ordinary meaning of the word “prohibiting” standing alone (though I am aware of no evidence of this). And, as McConnell has noted, “in the context of the free exercise debate in 1789,” no one “expressed the view that infringements that are not final, certain, or ‘damning’ should be allowed.” But it is not entirely clear what to make of this fact. There can be multiple reasons why certain consequences were not envisioned or commented upon by the enactors of a legal provision. McConnell believes that, had the First Amendment been understood to allow penalties on the free exercise of religion short of total prohibition, members of Congress “would surely have spoken up” to complain. But I am not sure this follows. Indeed, there is some Founding-era evidence that can be turned against McConnell’s position: At the time, a number of states -- including New York, where the First Congress met -- categorically barred clergy from holding government offices, a clear penalty (denial of a benefit or right) on account of religious exercise. This practice was not universally supported by any means, and it is possible that some or all of those Founders who supported clergy disqualification at the state level would not have supported it when imposed by the federal government. But the conflicting evidence here illustrates the difficulty of making originalist arguments from silence. Ultimately, the text of the Free Exercise Clause is the law, and strong evidence must be required to conclude that the text is best read in a sense other than what dictionary definitions and linguistic common sense would suggest.

Professor McConnell does cite one additional, stronger piece of evidence: A quote by James Madison. In his Report on the Virginia Resolutions, Madison wrote the following:

For if Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only “they shall not abridge it,” and is not said, “they shall make no law respecting it,” the analogy of reasoning is conclusive that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it; because it is said only “they shall not prohibit it,” and is not said, “they shall make no law respecting, or no law abridging it.”

From this, McConnell concludes that “the narrow interpretation of ‘prohibiting’ should therefore be rejected,” and “laws that discourage or inhibit religious exercise by denying government benefits” can violate the Free Exercise Clause. But in my respectful view, this conclusion is dubious. First, as McConnell concedes, Madison’s view about the equivalence of the various verbs in the First Amendment was not universally held. More importantly, the Sedition Act against which Madison was inveighing involved criminal sanctions, not mere disincentives or penalties. So the fact that Madison considered criminal sanctions on publication of material to constitute both an abridgement and a prohibition of the freedom of the press does not prove that he would still have considered it a prohibition (or even an abridgement) had the law not imposed any jail time or fines, but rather denied a discretionary government benefit. It is perfectly plausible that what Madison meant was simply that legal prohibitions on certain aspects of religious exercise (say, church attendance) would still be unconstitutional even if the government left other aspects (say, private prayer) untouched.

Additionally, one possibility McConnell seems to overlook is that “abridge” and “prohibit” could be essentially synonymous as used in the First Amendment, but with both being narrower rather than broader in scope. In other words, it is possible for McConnell to be correct that “prohibit” is equivalent to “abridge” or “infringe” and still be wrong about the meaning of “prohibit,” because it is possible that all three terms have narrower meanings than the Supreme Court has generally given them. Justices Scalia and Thomas, for instance, have taken a view of “abridge” in the Free Speech Clause that is remarkably similar to the stringent definition of “prohibit” (more on that below). Under the alternative view this paragraph outlines, both the Free Speech Clause and the Free Exercise Clause would protect only against government action that outlaws free speech or free exercise or makes them impossible, not against minor financial penalties. 

To be sure, even if McConnell is wrong about the meaning of “prohibit,” another possibility is that “free,” rather than “prohibit,” is the key word that expands the Free Exercise Clause to include selective denials of funding. In his Locke dissent, Justice Scalia -- joined by Justice Thomas -- argued that “[t]he First Amendment, after all, guarantees free exercise of religion, and when the State exacts a financial penalty of almost $3,000 for religious exercise—whether by tax or by forfeiture of an otherwise available benefit—religious practice is anything but free.” Locke v. Davey, 540 U.S. 712, 731 (2004) (Scalia, J., dissenting). Under this understanding, the word “free” is what protects against penalties that coerce. This is a plausible interpretation of the text, but it is not the only plausible interpretation. “Freedom of speech” also includes a version of the word “free,” yet Justices Scalia and Thomas have consistently denied that disincentivizing speech violates the Free Speech Clause (more on that below). In any event, the Report to the Attorney General appears to have anticipated Scalia’s argument about the word “free.” The report’s authors acknowledge that “one could argue … Ms. Sherbert and Mr. Thomas, relative to other workers, were penalized in the amount of their unemployment compensation and that that penalty is as real and substantial to them as the criminal sanctions were” in other free exercise cases. Nevertheless, “there is a difference between the government's compelling an action and its persuading (by encouraging or discouraging) completion of the same act, which may be readily seen in the remedies available in each case.”

Yet another possibility is that the incorporation of the Free Exercise Clause against the states effectively changed its meaning -- i.e., penalties on religious exercise are unconstitutional when imposed by the states, though not by the federal government. This “dual-track” approach to incorporation has fallen out of favor at the Supreme Court, though Justice Thomas has recently expressed some openness to it. But as Professor William Baude wrote in a thoughtful post, it is possible that dual-track incorporation is warranted because (1) “incorporation is an indirect consequence of the Fourteenth Amendment,” in that “the Amendment protects the Bill of Rights not because it was a direct cross-reference to the Bill of Rights but because it protects rights with a certain property” and/or (2) “[t]he public understanding of various constitutional rights was different in 1867/8 than it was in 1791.” 

Now, I am not sure this is right. As Baude concedes, and as Andrew Hyman has argued, “it’s also plausible that the Framers of the 14th Amendment incorrectly believed that their understanding of the Bill of Rights was the same as that at the Founding, and that their commitment to the same-ness principle is controlling even if it leads to 1791 controlling over 1867/8.” Still, the possibility of dual-track incorporation is worth exploring. One intriguing possibility is that the precise language of the Privileges or Immunities Clause -- “abridge” -- effectively replaces “prohibit.” Under this reading, the Free Exercise Clause as incorporated against the states would effectively read “No state shall abridge … the free exercise of religion.” To the extent that “abridge” is broader in coverage than “prohibit,” the free exercise right might be broader as applied to the states than the federal government. But no justice of the Supreme Court has ever suggested this reading, and it is not the only plausible way of reading the “incorporated” Free Exercise Clause. For example, one could read it as “No state shall abridge the right not to be prohibited from freely exercising religion.”

Regardless, one thing seems virtually certain: The Free Speech Clause -- given its use of “abridge” rather than “prohibit” -- must be at least as broad as the Free Exercise Clause in its application to “selective funding” and “unconstitutional conditions.” And the Supreme Court’s most originalist justices have frequently argued that the Free Speech Clause does not prohibit the government from selectively denying funding to speakers. In their view, the First Amendment’s prohibition on “abridg[ing] the freedom of speech” protects only “against the coercing of speech,” and not “against discriminating against or injuring opposing points of view.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 570 U.S. 205, 222 (2013) (Scalia, J., joined by Thomas, J., dissenting). This is because “[n]ot every disadvantage is a coercion.” Id. at 223. Justice Thomas recently reiterated this view, arguing that Congress can decline to subsidize certain speech based on the viewpoint it expresses because such a program “does not compel anyone to say anything,” given that entities “are not compelled to participate in the … program.” Agency for Int’l Development v. Alliance for Open Society Int’l, Inc., 140 S. Ct. 2082, 2090 (2020) (Thomas, J., concurring). 

Likewise, in National Endowment for Arts v. Finley, 524 U.S. 569 (1998), Justice Scalia (joined by Thomas) wrote that “I regard the distinction between ‘abridging’ speech and funding it as a fundamental divide, on this side of which the First Amendment is inapplicable.” Id. at 599 (Scalia, J., concurring in judgment). That is because “[t]o abridge is ‘to contract, to diminish; to deprive of,” but “[t]hose who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of this statute” (citing T. Sheridan, A Complete Dictionary of the English Language (6th ed. 1796)). Id. at 598. As Scalia wrote in another case, “The reason that denial of participation in a tax exemption or other subsidy scheme does not necessarily ‘infringe’ a fundamental right is that—unlike direct restriction or prohibition—such a denial does not, as a general rule, have any significant coercive effect.” Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 237 (1987) (Scalia, J., dissenting). This view seems reasonable enough, but why wouldn’t it extend to Free Exercise Clause cases, where the key word is “prohibit” rather than “abridge” or “infringe”? As far as I can tell, neither Scalia nor Thomas ever provided an answer. If failing to fund speech is not a free speech violation, then failing to fund religious exercise cannot be a free exercise violation. Originalists and textualists cannot have it both ways. “Prohibit” probably is a narrower term than “abridge,” but even assuming it has the same coverage, it is certainly not any broader.

In the end, even if I am right about the Free Exercise Clause, it may well be that Trinity Lutheran and other related cases were correctly decided on originalist grounds anyway. That’s because the Fourteenth Amendment’s equality guarantee -- whether found in the Equal Protection or Privileges or Immunities Clause (or both) -- likely prohibits invidious discrimination against religion. Indeed, that alternate argument was made in Trinity Lutheran, though the Court declined to address it. (The same was true in Locke v. Davey and Espinoza v. Montana, where petitioners even cited desegregation cases.) In a case involving disqualification of clergy to public office, Justice White wrote that “[r]ather than relying on the Free Exercise Clause, as do the other Members of the Court, I would hold ch. 848, § 4, of 1976 Tenn. Pub. Acts unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.” McDaniel v. Paty, 435 U.S. 618, 643 (1978) (White, J., concurring in judgment). As Justice White explained, the Free Exercise Clause seemed like a poor fit because it is not clear “in what way McDaniel has been deterred in the observance of his religious beliefs” or “been required to disavow any of his religious beliefs.” Id. at 643-644. The Fourteenth Amendment, with its focus on equality, was more appropriate. 

Chris Green and David Upham have powerfully argued that “[a] great deal of evidence shows that the equal citizenship principle of the Fourteenth Amendment covers creedal as well as racial discrimination.” Green and Upham note that “Republicans took distinctions based on religion or belief to be clear instances of the sort of second-class citizenship against which the Privileges or Immunities Clause was aimed.” They also observe that the “Court’s religion-clause cases have long been shot through with notions of equal citizenship.” (Professor Green just filed another amicus brief making these points.)

As Professor Green wrote on this blog last year, “It is widely recognized that the Fourteenth Amendment contains some sort of provision--disagreement persists about which provision--that broadly and abstractly requires equality in civil rights among similarly-situated American citizens (and perhaps among non-citizens too).” The core inquiry -- whether under the Equal Protection Clause or under the Privileges or Immunities Clause (or perhaps under the Citizenship Clause for the federal government) -- is whether the government has treated “similarly situated” citizens/persons equally. Lawrence v. Texas, 539 U.S. 558, 579 (2003) (O’Connor, J., concurring in judgment). Importantly, the Fourteenth Amendment approach would not necessarily lead to narrower decisions in religious school cases. For example, it is entirely possible (though I express no opinion on the matter) that most or all Blaine Amendments are facially unconstitutional under the original meaning of the Fourteenth Amendment.

The Meese report with which this essay began similarly noted that protection against “purposeful discrimination against religion that burdens but does not forbid or prevent free exercise” could “in most cases be available under the Establishment Clause and/or the Equal Protection Clause (among other constitutional provisions).” The authors frankly acknowledged that they were “not entirely comfortable with the idea that the Free Exercise Clause would not disallow such action under our interpretation. Nevertheless, we believe the only principled approach is to follow the text of the Constitution as we are able to best comprehend its original meaning, despite any misgivings we may have about the results of that approach.” Just so.


Scott Gerber on Evan Haefeli on the Origins of Religious Toleration in America
Michael Ramsey

At Law & Liberty, Scott Gerber (Northern Ohio): The English Origins of American Toleration (reviewing Accidental Pluralism: America and the Religious Politics of English Expansion, 1497–1662 by Evan Haefeli (Univ. of Chicago Press 2021).  From the introduction: 

Haefeli’s previous book, New Netherland and the Dutch Origins of American Religious Liberty, likewise proffered a revisionist account of the origins of religious liberty in America. In his prior book, Haefeli insisted that the greatest contribution of the Dutch to American religious diversity was not to promote tolerance, but to keep the mid-Atlantic region out of English hands until the Restoration, giving pluralism a chance to take root in what became New York and New Jersey as well as parts of Connecticut, Pennsylvania, and Delaware.

In Accidental Pluralism Haefeli argues that the religious pluralism that came to characterize colonial America was not a result of the colonists’ embracing pluralism as an ideal or establishing it in some planned or deliberate fashion. Rather, Haefeli contends, the origins of American religious freedom—a “peculiar mix of pluralism, tolerance, and liberty”—can be traced to the religious and political history of England and its empire between the earliest exploratory voyages and the re-institution of the Church of England after the Stuart Restoration.

Haefeli attempts to prove his thesis via a chronological discourse on England’s political history. He divides his book into five parts—Tudor-Stuart Foundations, 1497–ca. 1607; Jacobean Balance, ca. 1607-1625; Caroline Transformation,1625-1638; Civil Wars, 1638-1649; and Commonwealth, 1649-1660—presented in fourteen chapters and a conclusion.

And in conclusion:

My objection to Haefeli’s neglect of the European and American origins of religious toleration in America is not meant to deny the significance of Haefeli’s accomplishment. He has written an excellent book, and other scholars likely will be grappling with it for years to come. That said, I did find off-putting Haefeli’s occasional chest-thumping about how his approach is “original” and “correct” (my words, not his). For example, he avers in the introduction to his book that “Scholarship on early America is hampered by the habit of thinking about religion in small pieces” and that “we lack a bigger account of how those pieces fit together.” And after claiming to have provided that “bigger account,” he proclaims in the conclusion that “Crafting this history has required taking a whole series of national and imperial narratives and weaving them together into a new narrative.”  

Put directly, Haefeli has written a fine book that fits comfortably within the historiographic fad of the moment—Atlantic History—but that does not mean that alternative approaches to colonial American history are not useful too. Personally, I agree with Richard B. Morris and George Lee Haskins—two pioneering scholars in the field of American colonial legal history—that each colony must be examined individually. Despite what many historians seem to think, the writing of history is an art, not a science, and the more colors on the palette the better.


Evelyn Atkinson: The Forgotten History of Corporations, Race, and Equal Protection
Michael Ramsey

Recently published in the Virginia Law Review: Evelyn Atkinson (University of Chicago Law School), Frankenstein’s Baby: The Forgotten History of Corporations, Race, and Equal Protection (108 Va. L. Rev. 581 (2022)).  Here is the abstract:

This Article highlights the crucial role corporations played in crafting an expansive interpretation of the Fourteenth Amendment. Exposing the role of race in the history of the constitutional law of corporate personhood for the first time, this Article argues that corporations were instrumental in laying the foundation of the Equal Protection Clause that underlies civil rights jurisprudence today. By simultaneously bringing cases involving both corporations and Chinese immigrants, corporate lawyers and sympathetic federal judges crafted a broad interpretation of equal protection in order to draw a through-line from African Americans, to Chinese immigrants, and finally to corporate shareholders. At the same time that corporate litigation expanded the umbrella of protected “persons,” however, it limited the capacity of the Fourteenth Amendment to address issues of substantive inequality.

This Article reveals that central to the argument in favor of corporate constitutional personhood was a direct analogy between corporate shareholders and racial minorities. This Article thus highlights the intersection of corporate personhood and race, a connection that has rarely, if ever, been explored. Corporate lawyers’ expansive interpretation of equal protection ultimately triumphed in the Supreme Court with the twin cases of Yick Wo v. Hopkins, a bedrock of modern civil rights doctrine, and Santa Clara v. Southern Pacific Railroad, a case credited with extending equal protection rights to corporations. This is the first Article to juxtapose these two seminal cases and to expose the deep and long-standing connections between them. In so doing, this Article uncovers a neglected history of the link between corporations and race, as well as a lost history of the Fourteenth Amendment.

(Via Karen Tani at Legal History Blog.)


More Supreme Court Textualism [Updated]
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Textualism Monday.  Excerpts:

On Monday, the Supreme Court handed down five decisions, four of which focused on statutory interpretation.

First, Justice Sotomayor wrote the majority opinion in Johnson v. Arteaga-Martinez. She emphatically rejected the Third Circuit's interpretation of Section 1231(a)(6)... [Ed.: this was basically an 8-1 decision with Justice Breyer in dissent.]

... Second, Justice Alito wrote the majority opinion in Garland v. Aleman GonzalezThis opinion also interpreted Section 1231(a)(6), and emphatically rejected the Ninth Circuit's interpretation. Here, Alito relied on "ordinary meaning." ... [Ed.: 6-3, Justices Breyer, Kagan and Sotomayor in dissent.]

... Third, Justice Thomas wrote the majority opinion in Kemp v. United States. He distinguished between "ordinary meaning" and "legal meaning" in FRCP 60(c). ... [Ed.: 8-1, with Justice Gorsuch dissenting on a distinct point.]

... Fourth, Justice Barrett wrote the majority [Ed: unanimous] opinion in ZF Automotive U. S., Inc. v. Luxshare, Ltd. This case turned on the meaning of the phrase "foreign or international tribunal" in 28 U. S. C. §1782(a). It is a thoroughly textualist opinion.

Another big week for textualism (see here on last week).  A law review article could be written about this term's textualism.

I confess to some doubts on ZF Automotive.  The question was whether a private arbitration panel based outside the U.S. is a "foreign or international tribunal" for purposes of 28 U. S. C. §1782(a).  The Court said no: the phrase means only government-controlled adjudicative entities.  Perhaps, but as a general matter "foreign" doesn't have that implication.  A "foreign newspaper" is one published abroad, not necessarily a government-owned one.  A "foreign" airline is one not based in the U.S., whether government-owned or not.  I think maybe it should be the same for tribunals.  (But, as the Court points out, that would set up some tension with the Federal Arbitration Act, which I suspect is the real reason for the outcome).

RELATED: Also from Professor Blackman, Justice Gorsuch DIGS In Kemp and Digs Out in Denezpi.  From the introduction: 

On the current Court, Justice Gorsuch is the most unpredictable justice. The other members of the Court are more-or-less predictable, but Justice Gorsuch continually surprises me with how he disposes of cases--not in the outcomes he reaches, but how he gets there. Two opinions from Monday illustrate this dynamic....

UPDATE:  More opinions today, including some textualism.  Jonathan Adler comments on American Health Association v. Becerra (a unanimous textualist opinion) here


Kevin Tobia, Brian Slocum & Victoria Nourse: Progressive Textualism
Michael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law) & Victoria Nourse (Georgetown University Law Center) have posted Progressive Textualism (Georgetown Law Journal vol. 110, 2022 forthcoming) (57 pages) on SSRN.  Here is the abstract:

Textualism is now the Court’s lingua franca. In response, some have proposed a “progressive textualism,” defined by the use of traditional textualist methods to reach politically progressive results. This Article explores a different kind of “progressive textualism.” Rather than starting with the desired policy outcome—politically progressive or conservative—we begin from one of modern textualism’s central values: A commitment to “democratic” interpretation. As Justice Barrett argues, this commitment views textualists as “agents of the people” who “approach language from the perspective of an ordinary English speaker.” Textualists thereby claim to promote democracy by interpreting law consistently with what it communicates to the ordinary public. However, recent empirical studies reveal discrepancies between textualist interpretive commitments and how ordinary people understand legal texts. These discrepancies undermine claims that textualists’ methodology is committed to democratic interpretation.

A textualism centered on democratic interpretation would be methodologically more progressive if it centered facts rather than fictions about how ordinary people interpret language. It would recognize that people understand legal language in light of linguistic “(co)text” and “(con)text,” and sometimes nonliterally; they often understand ambiguous terms in law to have legal, not ordinary, meanings; and their understanding of law is informed by its apparent purpose and sometimes by interpretive rules that are conventionally justified on normative grounds. In contrast, current textualism is often methodologically regressive, crafting a fictional “ordinary person” more closely connected to ideological policy goals than facts about ordinary language comprehension.


Samuel Weaver: Restoring Section Five of Kentucky's Constitution
Michael Ramsey

Samuel Weaver (University of Kentucky J. David Rosenberg College of Law, JD '22) has posted Protecting Unbelief: Restoring Section Five of Kentucky's Constitution (Kentucky Law Journal, Vol. 110, No. 1, 2021) (30 pages) on SSRN.  Here is the abstract:

The Kentucky Supreme Court’s 2012 decision in Gingerich v. Commonwealth established that Section Five of Kentucky’s Constitution is coextensive with the First Amendment, protecting neither more nor less. But is this correct?

The text of Section Five, Kentucky’s unique story, the longitudinal history of Section Five’s lifespan over four constitutions, and the doctrines of federalism all point the other direction. Many of Kentucky’s earliest settlers arrived fleeing religious persecution in the East, and they followed Pennsylvania’s lead in firmly protecting liberty of conscience regardless of religious derivation. All three subsequent constitutions preserved a slightly strengthened version of the preceding charter’s protections, even after a strong effort to dilute them in the 1890 Convention. Yet the Gingerich Court neglected this history and instead read Section Five in pari materia with the First Amendment, even though the former predated the latter. In doing so, the Court essentially ratified the rejected proposal from the 1890 Convention and succumbed to the common temptation to further federalize our liberties. In fact, Kentucky’s Constitution is far broader than its federal counterpart and should be interpreted that way. Doing so will not only realize the dreams of Kentucky’s founders, but will relieve pressure on a U.S. Constitution not necessarily designed to safeguard every liberty the states already protect.

From last year but making an important point with broad implications: the "lockstep" approach linking the meaning of state constitutional provisions to whatever the U.S. Supreme Court says about parallel provisions in the U.S. Constitution is often in serious tension with originalism (even if the U.S. Supreme Court opinion is originalist).  State Supreme Courts really should figure these things out for themselves.

Also the "lockstep" conclusion discussed in the Note seems particularly doubtful because, as the Note describes, the Kentucky religion clauses don't use the same text as the U.S. Constitution's religion clauses (or anything close).


John McGinnis on Gerard Magliocca on Bushrod Washington
Michael Ramsey

At Law & Liberty, John McGinnis: The Workhorse of the Early Court.  From the introduction: 

... In Washington’s Heir: The Life of Bushrod Washington, Professor Gerard Magliocca adds importantly to our understanding of the early Court by making a compelling and well-researched case that Bushrod Washington was the soundest of the early justices. In this quality, of course, he resembled his Uncle George. Many of the Framers were more brilliant than he, but none had surer judgment. As Thomas Jefferson recognized, the first President never acted “until every circumstance, every consideration was maturely weighed.” His nephew, as described by Story, had the same characteristics: his “mind was solid rather than brilliant; sagacious and searching rather than quick or eager; slow but not torpid, steady, but not unyielding.”

Of course, the results of this soundness were not comparable to his Uncle, but that is a standard no one in American history can match. As Akhil Reed Amar has brilliantly argued in The Words that Made Us: Constitutional Conversations, 1760-1840, George was the person most responsible not only for winning the war that made America a nation but also for creating the Constitution that founded it. Nevertheless, from the evidence of this book, Bushrod was the most faithful conservator of that foundation among the early justices. He was devoted to understanding the text as enacted, and he resisted, as some of his more brilliant colleagues did not, the temptation to use the Constitution to create the optimal social policy according to his own lights.

And in conclusion:

Magliocca has himself provided superb academic service in bringing to life a figure who is largely forgotten but for his famous surname and showing his contemporary relevance to some of our own important legal debates.


James Cleith Phillips: Which Original Public?
Michael Ramsey

James Cleith Phillips (Chapman University, Dale E. Fowler School of Law) has posted Which Original Public? (Chapman Law Review, Vol. 25, No. 2, 2022) (16 pages) on SSRN.  Here is the abstract:

Original public meaning originalism seeks to know what the Constitution would have meant to an ordinary person at the time a specific provision was enacted. So originalist scholars tend to look to see what the Constitution’s words would have meant to an ordinary, average, or competent user of American English at the time a specific constitutional provision was adopted. In District of Columbia v. Heller, however, Justice Scalia’s majority opinion took a more specific view of exactly who qualified as the ordinary person of interest. At one point Heller declares that the “Constitution was written to be understood by the voters.” Yet in the very next sentence, Heller notes that “meanings that would not have been known to ordinary citizens in the founding generation” are excluded. However, these are not the same populations—or, as linguists would say, speech communities —in two ways. First, many citizens could not vote, with voting limited in some states based on requirements such as property ownership, and with few women, able to vote. Second, some voters were not “ordinary,” either generally or in their language use. Most, if not all, of the Founders would not fit this description.

This raises an important methodological question for original public meaning originalism. Performing original public meaning originalism requires looking at how the general public used and understood language. But which portion of the public is the correct one for determining the Constitution’s meaning? Heller proposes two possibilities: voters and “ordinary” citizens. If we go with the latter group, how would we define “ordinariness?” Yet there are other possibilities besides these two populations. What about all citizens, regardless of their “ordinariness?” Alternatively, we could look to the Constitution itself. Its preamble declares that “We the People” ordained and established it. Who would have been understood to be “We the People” in 1789, and are they the proper public for originalism’s inquiry? One could imagine other publics, such as everyone permanently in the United States, regardless of their ability to vote or citizenship status. Originalism has been theoretically fuzzy as to who qualifies as the original public from which meaning must be sought. This essay seeks explore the possibilities in hopes of further theoretical refinement to enable more focused originalist methodology.


Andrea Roth: The Lost Right to Jury Trial in 'All' Criminal Prosecutions
Michael Ramsey

Andrea L. Roth (University of California, Berkeley - School of Law) has posted The Lost Right to Jury Trial in 'All' Criminal Prosecutions (Duke Law Journal, Vol. 72, 2022) (46 pages) on SSRN.  Here is the abstract:

The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” Nonetheless, tens of thousands of federal defendants each year are denied a jury in “petty” cases with a potential sentence of six months or less. These cases can carry significant consequences and involve not only regulatory crimes but traditional crimes like theft, assault, and sexual abuse. This apparently blatant contradiction of the Constitution’s text is justified by the so-called “petty-offense exception,” originating in nineteenth-century Supreme Court dictum that cited to the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace. While a couple of commentators over the last century have criticized this doctrine, it has never been fully litigated. Harnessing previously unexplored historical and textual sources, this Article offers the most comprehensive argument to date that the petty offense exception’s existing rationales are untenable. Indeed, as the sources reveal, controversial summary bench trials could just as naturally be read as inspiration for the Framers’ conspicuous decision to guarantee a jury in “all” criminal prosecutions. Ultimately, if one looks to text and history to interpret the jury right, it must at the very least extend to defendants formally charged by the Department of Justice in federal criminal court. The Article concludes by exploring the implications of a jury right in federal petty cases, including the importance of the right, and implications for state defendants and the Sixth Amendment right to counsel.


Textualism Wins 24-2 this Week
Michael Ramsey

The Supreme Court decided three cases last Monday with textualism prevailing by a combined vote of 24-2. 

In the constitutional case, Siegel v. Fitzgerald, Justice Sotomayor wrote for a unanimous Court that in Article I, Section 8's bankruptcy clause, "uniform" means "uniform" -- not uniform as to some things or uniform unless there's a reason not to be uniform.  (Thus a law exempting bankruptcy proceedings in some states from fees charged for bankruptcy proceedings in other states is unconstitutional.)

In an 8-0 statutory case (Justice Barrett not participating), Justice Thomas concluded for the Court in Southwest Airlines Co. v. Saxon that people who load baggage onto airplanes are part of  a “class of workers engaged in foreign or interstate commerce” and therefore can avoid contractual arbitration provisions pursuant to federal law.  It's a thoroughly original meaning/textualist opinion, relying heavily on dictionaries from near the time of enactment of the relevant statute (the Federal Arbitration Act, passed in 1925), plus Scalia and Garner's Reading Law (on the meaningful-variation canon) and lots of ejusdem generis.  But no legislative history! 

The Court also brushed aside a "statutory purpose" argument in two short paragraphs:

Southwest falls back on statutory purpose. It observes that §2 of the FAA broadly requires courts to enforce arbitration agreements in any “contract evidencing a transaction involving commerce,” while §1 provides only a narrower exemption. This structure, in its view, demonstrates the FAA’s “proarbitration purposes” and counsels in favor of an interpretation that errs on the side of fewer §1 exemptions. 

To be sure, we have relied on statutory purpose to inform our interpretation of the FAA when that “purpose is readily
apparent from the FAA’s text.” AT&T Mobility LLC v. Concepcion, 563 U. S. 333, 344 (2011). But we are not “free to
pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal.” New Prime, 586 U. S., at
___ (slip op., at 14). Here, §1’s plain text suffices to show that airplane cargo loaders are exempt from the FAA’s scope, and we have no warrant to elevate vague invocations of statutory purpose over the words Congress chose.

Finally, Justice Thomas had another textualist opinion for the Court in Gallardo v. Marstiller, involving §1396k(a)(1)(A) of the federal Medicaid Act.  In the Court's view: "The plain text of §1396k(a)(1)(A) decides this case" and "Gallardo nevertheless argues that §1396k(a)(1)(A) has a different meaning, largely by discounting the text of §1396k(a)(1)(A) and then relying on other differently worded provisions or on policy arguments, none of which we find convincing."  Justices Sotomayor and Breyer dissented, but Justice Kagan joined the conservative Justices ruling against a sympathetic plaintiff (a disabled child who had been hit by a truck).

Taken with some other cases noted earlier, the term is shaping up as a winning one for textualism (that being overshadowed, of course, by a few big constitutional cases).

(Aside: the less said about Egbert v. Boule, decided yesterday, the better.)


Legal Theory Lexicon on "New Originalism"
Michael Ramsey

At Legal Theory Blog, Larry Solum's Legal Theory Lexicon has this updated entry: The New Originalism.  From the introduction:

... The old originalism is associated with the idea that the constitution should be interpreted to conform to the original intentions of the framers—the group that drafted each provision. For the bulk of the constitutional text, drafting occurred in the Philadelphia Convention, but each of the amendments has its own drafting history. But in the 1980s and 1990s originalism began to change in significant ways, and in the late 1990s and early 2000s, scholars began to refer to “the New Originalism.”

This entry in the Legal Theory Lexicon focuses on what is called "New Originalism.” Of course, labels like this are just names that carve up the theoretical landscape. For our purposes, "New Originalism" refers to a cluster of originalist theories that reject a set of ideas from older originalist theory, including (1) original intent originalism (in the form that focuses on the application preferences of the Framers) and (2) the idea that the application beliefs of the Framers are binding. 

Many New Originalist theories also endorse the following two ideas: (1) the claim that the original meaning of the constitution is its public meaning, and (2) the distinction between interpretation and construction. But some theorists who are called "New Originalists" endorse other theories of original meaning, such as "original methods originalism" and reject the idea the there the constitutional text is substantially underdeterminate.

And from later on:

The New Originalism has given to a new set of disputes, both within originalism and between originalists and nonoriginalists.  From the conservative side some theorists who might be called "new originalists," have focused on restraint and constraint. John McGinnis and Michael Rappaport have argued that constitutional construction is unnecessary. Their argument reflects their distinctive version of originalism, “Original Methods Originalism.” They argue that by using the original methods of constitutional interpretation, judges can eliminate or almost eliminate ambiguity and vagueness; in the most recent iteration of their theory, they claim that the constitution is written "the language of the law" and that legal concepts are more precise and determinate than are public meanings.

A different approach to the problem of constraint has been developed by Gary Lawson and Michael Paulsen. They each argue that the problem of vagueness can be solved by a principle of judicial restraint. When the text is vague or ambiguous, judges should defer to the decisions made by elected officials. So even if there is a “construction zone,” there is no need for judicial discretion or morally informed decision making.

Finally, Randy Barnett and Evan Bernick have argued that cases in the construction zone should be resolved by implementing rules that conform to the original purpose or function of the relevant constitutional provision(s).  Their approach requires judges to act in good faith, discovering original purposes and not acting on their own beliefs about what the purpose of a given constitutional provision ought to be.

Progressive criticism of the New Originalism has focused on a different set of issues. Some progressive critics have argued against the notion that the public meaning of the constitutional text can do the work of resolving constitutional controversies. One version of this criticism emphasizes historical context. Because the original understanding of the text was embedded in particular historical circumstances, that understanding cannot be transported to modern circumstances.

Another line of progressive criticism suggests that the New Originalism no longer provides sufficient constraint and restraint to serve as a real rival for Living Constitutionalism. Thomas Colby has made a version of this argument, and a similar argument has been advanced by Peter Smith. Together, Colby and Smith have also argued that new versions of originalism are so varied in content that it no longer makes sense to think of originalism as a coherent constitutional theory.


The Insular Cases Initially Did Not Treat Incorporated Territories Differently from Unincorporated Territories With Respect to Birthright U.S. Citizenship
Andrew Hyman

The Insular Cases decided that federal territories can be divided up into incorporated ones and unincorporated ones, with more federal constitutional rights applicable in the former than the latter.  That framework has come in for a lot of criticism, both because of the racially-tinged language that was initially used to justify it, and also because of the thin support for it in the constitutional text or in pre-ratification history.  There is currently ongoing litigation to overrule the Insular Cases.

But there is an important part of the Insular Cases that has almost nothing to do with territorial incorporation and nothing to do with racism.  Downes v. Bidwell (1901) was one of the Insular Cases, and five justices in that case (Brown, Fuller, Harlan, Brewer, and Peckham) quoted the Citizenship Clause of the Fourteenth Amendment while saying that that clause did not apply differently in unincorporated versus incorporated territories.  Whatever else they disagreed about, those five judges agreed on that basic principle that territories should be treated equally under the Citizenship Clause.  

In my view, Justice Henry Brown correctly interpreted the original meaning of the Citizenship Clause in Downes, as being completely inapplicable to birth in any federal territories.  His opinion was not based on overt racism, and it applied equally to both incorporated and unincorporated territories.  There was also a concurring opinion in Downes by Justice White (joined by Shiras and McKenna), and the Court later adopted it as a controlling opinion, but White’s opinion never mentioned the Fourteenth Amendment much less the Citizenship Clause.  

The current litigation about birthright constitutional citizenship in American Samoa ought to be resolved on originalist grounds rather than on the basis of wanting to get rid of the Insular Cases, which have not even been consistent on this point.  As Justice Brown’s opinion shows, the current treatment of citizenship in American Samoa can be justified on originalist grounds without treating unincorporated territories worse than incorporated territories.

The Citizenship Clause says, “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.” Instead of talking about history, or context, let’s briefly consider the most important thing of all which is what the clause says and doesn’t say.

First, the Citizenship Clause could have easily been extended to territories if the clause had been written like this: “All persons born or naturalized in any place subject to the jurisdiction of the United States are citizens of the United States….”  This is why Justice Brown said in Downes that the Citizenship Clause “is not extended” to territories (D.C. is an exception which I won’t address here).

Second, the text of the Citizenship Clause does not mention territories, even though that would have been easy.  As Congressman James Ashley pointed out repeatedly in 1867, it would have been very simple to write: “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 or territory wherein they reside” (emphasis added).  See 40th Congress 2nd Session Cong. Globe 117 (December 10, 1867).

Third, the Citizenship Clause says that the persons entitled to birthright U.S. citizenship “are citizens of … the state wherein they reside” which suggests residence at birth within a state.  This suggestion could have been easily eliminated by including a single extra word: “are citizens of … the state wherein they might reside.”  As the Tenth Circuit recently explained, “Another textual consideration suggesting the Citizenship Clause’s exclusive application to state-born residents is its effect of rendering persons born in the United States ‘citizens of the United States and of the State wherein they reside.’”

Fourth, Judge Lucero in that Tenth Circuit case wrote that the Citizenship Clause might have been phrased differently if it really was meant to be inapplicable in the territories: “All persons born or naturalized in the several states, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  The problem with that phrasing is that being subject to the jurisdiction of the several states would mean being subject to the jurisdiction of all of them, which is basically impossible, and that would explain why the clause was not phrased that way.  

The last of these four textual features does not seem persuasive, for the reasons explained.  The first three may not be airtight, but are pretty close to being airtight in my opinion.  Prof. Michael Ramsey has not commented on the first one, as far as I know.  As to the second, he has suggested that territorial citizenship was not a high priority because a territory was not a sovereign entity, but territorial citizenship was a common status in the decades leading up to the Civil War (e.g. see this discussion by Joseph Story).  As to the third, Mike has read the Citizenship Clause as containing an implicit “if any” so it reads like this: “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 if any wherein they reside.”  Sometimes it is okay to judicially correct an error in a statute (e.g. by inserting “if any”), but only if “failing to do so would result in a disposition that no reasonable person could approve” (per Justice Scalia).  The words “if any” could have been reasonably omitted to protect indigenous cultures from the imposition of federal oversight and scrutiny, while allowing a greater degree of self-government.  With respect to cultures that are not indigenous, the words “if any” could have been reasonably omitted to make territorial status less appealing, so that statehood would be sought and achieved sooner.

Finally, a word about Justice Brown and his reputation.  Readers may recall that he authored the atrocious majority opinion in Plessy v. Ferguson.  But in Downes he was right, and no one should hesitate about saying so merely because of Plessy. After all, even as to a horrible case like Dred Scott, the prevalent attitude of leaders in the 39th Congress was to condemn what was awful while acknowledging what was valid.  For example, the majority wrote this in Dred Scott: “The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing.”  This line was favorably mentioned several times by Republicans in Congress during 1866 alone, including by Senator Charles Sumner (R-MA), Congressman William Newell (R-NJ), Senator John Henderson (R-MO), Senator Richard Yates (R-IL), and Congressman John Bingham (R- OH).  We should follow their virtuous example, by being careful not to condemn Justice Brown’s opinion in the Insular Cases just because we rightly condemn another opinion of his.  That’s especially true because his opinion in Downes coincided with that of a lot of reputable non-judges of his day, including Harvard Law School Dean Christopher C. Langdell, who wrote in an 1899 law review article about the framers of the Citizenship Clause: “if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'"

FURTHER THOUGHTS:  I’d like to elaborate a little bit on point four in this blog post, which discussed why the words “the several states” were not included in the Citizenship Clause.  In my view, that issue is a wash.  Looking solely at that issue by itself, the word choice could hypothetically have been because (as Judge Lucero argued) the framers understood “the United States” to include all federal territories whereas “the several states” did not.  But that word choice could just as easily have been because the framers wanted to make sure people born while residing in the District of Columbia would be entitled to constitutional birthright U.S. citizenship even though people born in the federal territories would not; Justice Henry Brown plausibly argued in Downes that D.C. is part of the narrow meaning of the United States that excludes federal territories, even if D.C. is not part of the narrower meaning of “the several states.”  Justice Brown’s argument was plausible, and so is the similar argument that the framers’ word choice may have been because they wanted to make sure birthright U.S. citizenship would apply in federal enclaves (which are not subject to the jurisdiction of the several states and where federal authority is the same as it is in D.C.).


Call for Papers: Originalism Works-in-Progress Conference in San Diego in February 2023
Michael Ramsey

From the University of San Diego Law School Center for the Study of Constitutional Originalism:

On February 10-11, 2023, the Center for the Study of Constitutional Originalism at the University of San Diego School of Law will hold the Fourteenth Annual Hugh and Hazel Darling Foundation Originalism Works-in-Progress Conference.  (Please note that this date is one week earlier than we normally hold the conference.)  We are planning for the conference to be held in person in San Diego.  The conference will include approximately 6 or 7 unpublished papers on originalism, with commentary from invited scholars, and then questions from the other participants at the conference.

This past February the Center held the Thirteenth Annual Originalism Works-in-Progress Conference in San Diego.  For information on the Thirteenth Conference see here.  For a videotape of the proceedings, see our Youtube Channel.  For information and videotapes of the other twelve conferences, see here or here.   

We invite submissions of works in progress for the Fourteenth Conference.  A work in progress is a draft paper, in article or book chapter form, that is not yet published as of the conference date.  An originalism paper is defined broadly to be any paper that argues for or against originalism as a matter of theory, or applies originalism to some aspect of the Constitution.

Submissions should take the form of at least a one to three page abstract (or an initial draft, if available).  The Originalism Center will select an appropriate range of papers to be presented at the conference.  Submissions can be sent to us now, if possible, but in any event by the end of August 2022.  We will ask that the selected papers be circulated to conference participants in late January 2023.  The Center will cover the main travel expenses, lodging, and meals for paper authors and commentators.  The Call for Papers page is here.

In addition to paper authors and commentators, we would like to invite all scholars who do work on originalism to attend and participate in the conference by reading the papers and joining in the discussion.  The Center would be happy to pay for the principal meals for those attending the entire conference but not giving a paper or serving as a commentator.

We hope you will be able to join us in San Diego. 


Gerald Dickinson: Reviving Liberal Constitutionalism with Originalism in Emergency Powers Doctrine
Michael Ramsey

Gerald S. Dickinson (University of Pittsburgh - School of Law) has posted Reviving Liberal Constitutionalism with Originalism in Emergency Powers Doctrine (Journal of National Security Law and Policy, Vol. 12, p. 203, 2022) (31 pages) on SSRN.  Here is the abstract:

Recent scholarship suggests the executive power is, at its core, merely the power to “carry out projects defined by a prior exercise of the legislative power” and to implement “substantive legal requirements and authorities that were created somewhere else.” Few, if any, scholars, however, have drawn a link between the original understanding of the Executive Power Clause and its relationship to emergency powers doctrine under the theory of liberal constitutionalism. This Essay addresses this gap in the scholarship, and offers musings about the doctrinal and political implications of an originalist reading of the Executive Power Clause in relation to crisis government and emergency powers doctrine. If, as scholar Julian Davis Mortenson argues, Article II is to be read as merely the power to execute the laws and nothing more, then we must question whether our longstanding expansive view of emergency powers, as derived from Article II, is also wrong. If so, what are the political and doctrinal implications for a narrowed, originalist understanding of Article II in times of emergency?

This Essay proceeds in three Parts. Part I sets forth the traditional theories of emergency powers. From the absolutist to the relativist to the liberal, these competing theories have established the basic frameworks that attempt to resolve tensions between law and necessity during times of crisis.15 While the liberal theory dominated discourse and action in the early Republic, the relativist view has become the dominant view of emergency powers. Part II will seek to revive liberal constitutionalism in emergency powers doctrine by focusing on recent scholarship arguing that the Law Execution theory of executive power meant the power “was conceptually an empty vessel until there were laws or instructions that needed executing” by the legislature. Like the relativist theory of emergency powers displacing liberal constitutionalism, the Royal Residuum Theory likewise has long dispatched the Law Execution theory in executive powers interpretation. Yet, a revised originalist interpretation of the Law Execution theory is based in seventeenth and eighteenth-century originalism where the “ordinary meaning of ‘executive power’ referred unambiguously to a single, discrete, and potent authority” to simply execute the laws created by the legislature. This Essay seeks to supplement an original understanding of the Article II Executive Powers Clause with liberal constitutionalism’s theory that is based on a Madisonian-centric conception of government. Part III offers musings on the political and doctrinal implications of a resuscitated vision of liberal constitutionalism and emergency powers under the Law Execution Theory of executive powers.

I don't accept Professor Mortenson's view of the original meaning of executive power (see here) but I also don't think the original meaning of executive power includes an emergency power (that is, a power to do things in "emergencies" [however defined] that cannot be done in ordinary times).  I think the founding generation would have thought that quite a dangerous power, and I don't see any evidence that it was conveyed by the Constitution.


Mila Sohoni: Equity and the Sovereign [Updated]
Michael Ramsey

Mila Sohoni (University of San Diego School of Law) has posted Equity and the Sovereign (Notre Dame Law Review, forthcoming) (39 pages) on SSRN.  Here is the abstract:

Equity traces its genesis to kingly power. But the new American constitutional order shattered the crown and left equity unanchored. Who or what, if anything, inherited the role of the sovereign in federal equity? Is the sovereign the executive branch—or is it Congress? Is it “the United States” or “the people of the United States”? However we conceive of the sovereign, is the sovereign entitled to special deference in a federal court of equity—or to the reverse?

Federal courts have not arrived at consistent answers to these puzzles. They have vacillated on who the sovereign is. And they have vacillated on whether the sovereign is entitled to equal, better, or worse treatment from equity than other litigants receive. If equity is, like spacetime, our law’s background field—a “gloss written round our code,” in Maitland’s description—then sovereign power is a star so massive that it warps that field, shrinking parts of it and expanding others.

This Essay, a contribution to a Symposium on the federal equity power hosted by the Notre Dame Law Review, canvasses the varying approaches that federal courts in equity have taken towards the sovereign. It then explores some implications of equity’s treatment of the sovereign for equitable doctrine and for our understanding of Article III’s reference to “Cases, in . . . Equity.” How to conceive of the sovereign in equity in a government without a sovereign was a problem that challenged the members of the first Congress and the first sitting Justices; it is a problem that continues to lurk in the law today.

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


ACLU et al.: Overrule the Insular Cases
Michael Ramsey

In a cert-stage amicus brief recently submitted by the ACLU and multiple other civil rights organization in Fitisemanu v. United States, a call to overrule the Insular Cases on originalist grounds:

... [M]embers of the Court have long criticized the Insular Cases. Almost no one defends the decisions at this point. This case provides the ideal opportunity to overrule them once and for all.

The Court should do so for two main reasons. First, the Insular Cases are “egregiously wrong as a matter of law.” See Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020) (Kavanaugh, J., concurring) (discussing considerations guiding inquiry on whether to overrule constitutional decision). The territorial incorporation doctrine has no foundation in either the Constitution’s text or history and cannot be squared with our structure of a limited federal government of enumerated powers. It is an anomaly lacking a “home in our Constitution or its original understanding.” Vaello Madero, 142 S. Ct. at 1554 (Gorsuch, J., concurring). ...

A. The Insular Cases’ principle of “unincorporated territories” has no foundation in the text or original understanding of the Constitution.

Territorial incorporation was, from the start, at war with bedrock principles of a national government constrained by the Constitution. By 1901, it was well settled that in governing territories, “Congress [was] supreme” and held “all the powers of the people of the United States . . . .” First Nat’l Bank v. Yankton Cnty., 101 U.S. 129, 133 (1879). But Congress’ authority over territories yielded to “restrictions . . . expressed” or “necessarily implied” in the Constitution. Murphy v. Ramsey, 114 U.S. 15, 44 (1885). Even as it exercised its broad powers to govern national lands, Congress
could not act outside of the Constitution’s boundaries. See, e.g., Reynolds v. United States, 98 U.S. 145, 162 (1878) (“Congress cannot pass a law for the government of the Territories . . . prohibit[ing] the free exercise of religion.”).

The Insular Cases ignored these elemental principles in concluding that parts of the Constitution could be withheld until Congress saw fit to “incorporate” territories. As dissenting Justices explained at the time the doctrine was invented, the decisions carved out a novel and unfounded exception to the precept of limited national government with no mooring in the Constitution’s text or history. See Downes, 182 U.S. at 380 (Harlan, J., dissenting) (notion that territories could be held “as mere colonies” was “inconsistent with the spirit and genius, as well as the words, of the Constitution”).

That departure was anomalous when written. Not even the Justices who fabricated the Insular Cases’ doctrine understood their efforts to be grounded in the Constitution’s text or meaning.

Agreed (even if they didn't cite me.)

(Via Ed Whelan at NRO Bench Memos, who notes a comparison with Justice Alito's leaked draft in Dobbs.)

Aside: I joined a law professors amicus brief, also supporting the petition in Fitisemanu, that does not take on the Insular Cases directly; it argues that in any event the Insular Cases should not be extended to deny birthright citizenship to persons born in the territories.


A Small Mistake in the Draft Dobbs Opinion at Footnote 22: Corfield v. Coryell Was Not “Describing Unenumerated Rights”
Andrew Hyman

The draft opinion in Dobbs v. Jackson Women’s Health is probably going to be revised considerably before it’s finalized, and likely has already changed to some extent, but I would like to mention a tiny and easily-fixable error that I hope does not survive in the final opinion.  At footnote 22, the draft says that the case of Corfield v. Coryell was “describing unenumerated rights under the Privileges and Immunities Clause, U.S. Const. Art. IV, § 2…” (emphasis added).  For clarity, I will refer to the Privileges and Immunities Clause of Art. IV by its more distinctive name: the Comity Clause.

Contrary to footnote 22, the decision in Corfield was about an enumerated right, and about whether a visiting citizen from out of state was entitled to share in that enumerated right of native citizens.  The enumerated right in question was spelled out by the New Jersey legislature on June 9, 1820.  As described by Justice Washington in Corfield, the statute defined a right of New Jersey citizens to gather oysters from September 1 to May 1 provided that no dredging technique was used.  There was nothing unenumerated about it.  

Moreover, any state back in 1820 that chose to recognize only enumerated legal rights of its citizens was not compelled by the Comity Clause of Article IV to offer any unenumerated rights whatsoever to anyone in that state.  Justice Washington’s opinion in Corfield never suggested otherwise.  In fact, Justice Washington’s notes about the case specifically said that he was inclined toward believing that “the meaning of this Article is that the citizens of each State shall within every other state have equal privileges or rights as the citizens of such state have, the words all privileges of citizens being equivalent to equal privileges.”  So, if the citizens of a state enjoyed no unenumerated rights in that state, then neither did visitors to such state have any unenumerated rights.  This is what the U.S. Supreme Court has consistently reiterated beginning with its 1869 decision in Paul v. Virginia.

One could argue that Corfield implied something about unenumerated rights in the event that some hypothetical state were to support unenumerated rights for its own citizens, but that’s not what New Jersey was doing in 1820.  Corfield never remotely suggested that any state would have to start recognizing unenumerated rights, or would have to maintain any unenumerated rights that it already recognized.  And everyone in 1866-1868 understood that the Comity Clause only required that when a state extended certain “fundamental” rights to their own citizens, they had to extend the same privilege to visiting citizens from other states.  Which brings me to a somewhat more general point....

Relying upon Corfield is risky business when it comes to interpreting the 14th Amendment.  That’s because the first draft of the 14th Amendment closely tracked the Comity Clause of Article IV, but the first draft was postponed in the House of Representatives by a vote of 110-37 on February 28, 1866, never to see the light of day again.  Then the final draft of the 14th Amendment instead used language much different from that used in Article IV and in the rejected first draft.  

The first draft of the 14th Amendment said, “The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each state all privileges and immunities of citizens in the several states....”  In contrast, the final draft uses very different language about citizenship:  “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.”  This language about citizenship in the 14th Amendment needs to be evaluated according to its own text and history, not by equating it to language of Article IV that was deliberately and overwhelmingly eschewed by Congress.  And besides, as Justice Washington and later the whole U.S. Supreme Court have explained, the language of Article IV does not force any state to start recognizing unenumerated rights, nor does it even require any state to maintain unenumerated rights that it may have already recognized. 

P.S. Many thanks to Professor Kurt Lash for commenting on a draft of this blog post.

Justin Aimonetti: Holmes v. Walton and its Enduring Lessons for Originalism
Michael Ramsey

Justin W. Aimonetti (University of Virginia School of Law) has posted an abstract for Holmes v. Walton and its Enduring Lessons for Originalism (Marquette Law Review, Vol. 106, forthcoming 2022) on SSRN:

Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the Court looked to the fixed, original meaning of the jury-trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern development.

Not only did the Court in Holmes rely on the animating principles of originalism to reach its decision, but by disallowing the state statute, it also granted relief to loyalists just months after Americans suffered their worst defeat of the Revolutionary War. Holmes, then, also shows that in times of crisis, originalism is a virtue rather than an encumbrance. By constraining judicial decisionmaking especially during periods of tumult, originalism safeguards the rule of law. Originalists today should look to past cases like Holmes for guidance and support, particularly in the face of growing calls from non-originalists and common good constitutionalists to cast originalism aside.

No article available for download, so ordinarily I wouldn't link to it, but the basic point about Holmes v. Walton is apparent from the abstract.  A notable case, also showing that constitutional judicial review was well understood prior to the drafting of the Constitution (and not something invented by John Marshall).

Mike Rappaport adds: Holmes is also an example of interpreting a constitution in accord with its legal meaning rather than its ordinary language meaning.  


UC Davis Law Review Symposium on the Second Amendment
Michael Ramsey

Recently published, in the U.C. Davis Law Review: Symposium — The 2nd Amendment at the Supreme Court: "700 Years Of History" and the Modern Effects of Guns in Public (Vol. 55, No. 5, pp. 2495 to 2730).  Here is the list of papers:


The Dobbs Draft and Stare Decisis: An Epistemic Approach to Integrating the Factors
Chris Green

The Dobbs draft opinion circulated at the Supreme Court in February and leaked to the press in April reads at many points like a shell intended for supplementation in response to concurrences and dissents. One place is footnote 22, in which the opinion very briefly confronts the Privileges or Immunities Clause, claiming that Corfield v. Coryell requires a tradition-based approach to identifying the privileges of citizens of the United States. A second is the issue of the precise significance under a tradition-based view of substantive rights of the prevalence of a right in 1868 as opposed to the existence of a consensus among states today. A third is the opinion’s discussion of stare decisis. The opinion does not attempt to characterize the general nature of stare decisis, but instead simply goes through all of the relevant factors and explains why none of them favor retaining Roe

The pressure of responding to a vigorous dissent will be likely to sharpen the precise ways in which these stare decisis factors work together. One approach that has appealed to an ideologically-diverse set of justices in the past might appeal to the Court in Dobbs. Justices Stevens, Breyer, Barrett, and Thomas have all put the stare decisis question into epistemic terms: is the error of an earlier decision sufficiently clear, given the reliance interests at stake? Stevens’s opinion in McDonald v. Chicago said that “the original meaning of the [Privileges or Immunities] Clause is … not nearly as clear as it would need to be to dislodge 137 years of precedent.” Justice Barrett wrote similarly as a professor: “The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach.” Justice Thomas in his Gamble opinion distinguished “textually permissible,” though possibly erroneous, precedent, from “demonstrably” erroneous earlier mistakes: “Federal courts may … adhere to an incorrect decision as precedent, but only when … the earlier decision adopted a textually permissible interpretation of the law … When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” Finally, Justice Breyer at the Dobbs oral argument noted that in a case with big reliance interests, “you better be damn sure that the normal … considerations … are really there in spades.”

If such a “better be damn sure” approach to the stare decisis factors were to emerge from the deliberations in Dobbs between now and the end of the term, what would things look like?  Under this sort of approach, reliance interests produced by a precedent would not alter our constitutional ontology: the truthmaking object of constitutional interpretation that renders constitutional claims true or false. The Constitution still is the Constitution, no matter what the Supreme Court has said about it. The sentence “the Fourteenth Amendment protects abortion rights” would be rendered true or false by the same events as it would have before the Supreme Court addressed the subject: for the originalist, by the meaning expressed by the words of the Fourteenth Amendment in the original context of Reconstruction.

Rather than altering our constitutional ontology, reliance interests would be relevant under a better-be-damn-sure approach to precedent epistemically, by raising the burden of proof before the Court could properly overrule. In that case, it would be critical for dissenters to mount some kind of substantive defense of the propriety of constitutional abortion rights. Those who deem reliance interests in Roe and Casey to be relatively high would require a commensurately smaller defense. But they would need something, and almost certainly more than they received in the Dobbs argument itself. To say that we should retain Roe or Casey solely because of stare decisis considerations would be like a criminal defense attorney urging a jury to acquit solely because the beyond-a-reasonable-doubt standard is so high. To be persuasive, the dissents will have to do better than that. If they do not make the attempt, the majority’s confidence that overruling Roe is the right approach should grow.

Another 9-0 Win for Textualism in Morgan v. Sundance
Michael Ramsey

Last week the Supreme Court ruled unanimously in Morgan v. Sundance, Inc. that there is no atextual "policy favoring arbitration" that allows courts to make up additional requirements for waiver of a contractual provision for arbitration.  (SCOTUSBlog analysis from Charlotte Garden here).  From Justice Kagan's opinion reversing the Eighth Circuit:

Outside the arbitration context, a federal court assessing waiver does not generally ask about prejudice. Waiver, we have said, “is the intentional relinquishment or abandonment of a known right.” United States v. Olano, 507 U. S. 725, 733 (1993) (internal quotation marks omitted). To decide whether a waiver has occurred, the court focuses on the actions of the person who held the right; the court seldom considers the effects of those actions on the opposing party. That analysis applies to the waiver of a contractual right, as of any other. As Judge Colloton noted in dissent below, a contractual waiver “normally is effective” without proof of “detrimental reliance.” ... So in demanding that kind of proof before finding the waiver of an arbitration right, the Eighth Circuit applies a rule found nowhere else—consider it a bespoke rule of waiver for arbitration.

The Eighth Circuit’s arbitration-specific rule derives from a decades-old Second Circuit decision, which in turn grounded the rule in the [Federal Arbitration Act's] policy. ... But the FAA’s “policy favoring arbitration” does not authorize federal courts to invent special, arbitration-preferring procedural rules.  ...  And indeed, the text of the FAA makes clear that courts are not to create arbitration-specific procedural rules like the one we address here. Section 6 of the FAA provides that any application under the statute—including an application to stay litigation or compel  arbitration—“shall be made and heard in the manner provided by law for the making and hearing of motions” (unless the statute says otherwise). A directive to a federal court to treat arbitration applications “in the manner provided by law” for all other motions is simply a command to apply the usual federal procedural rules, including any rules relating to a motion’s timeliness. Or put conversely, it is a bar on using custom-made rules, to tilt the playing field in favor of (or against) arbitration. As explained above, the usual federal rule of waiver does not include a prejudice requirement. So Section 6 instructs that prejudice is not a condition of finding that a party, by litigating too long, waived its right to stay litigation or compel arbitration under the FAA.

And in conclusion:

Our sole holding today is that [courts] may not make up a new procedural rule based on the FAA’s “policy favoring arbitration.”

Seems like an easy case -- but it's not if courts don't stick to the text and let themselves "make up" rules.  As Justice Kagan noted, "Nine circuits, including the Eighth, have invoked 'the strong federal policy favoring arbitration' in support of an arbitration-specific waiver rule demanding a showing of prejudice."

The Morgan case reminds me of Cassirer v. Thyssen decided earlier this year, in which the Court unanimously overturned a court of appeals decision that made up a federal policy not found in, and indeed contrary to the text of, the relevant statute.  Cases like Morgan and Cassirer are big wins for textualism over judicial policymaking.  They share another characteristic too: a sympathetic winning plaintiff, with a vaguely center-left political valence.  It's great to see the right-leaning Justices sticking to textualism in these cases.  But textualism can't really claim victory until we see left-leaning Justices sticking to textualism for right-leaning outcomes.


Originalism in the Cawthorn Litigation
Michael Ramsey

Last week in Cawthorn v. Amalfi, the Fourth Circuit (Judge  Heytens, joined by Judge Wynn) concluded that the 1872 Amnesty Act wasn't prospective (and therefore doesn't shield Representative Cawthorn from potential disqualification):

In 1868—three years after the end of "the late wicked Rebellion"—the Constitution was amended to disqualify from future federal or state office certain public officials "who … shall have engaged in insurrection or rebellion against" the United States "or given aid and comfort to the enemies thereof." Four years later, Congress exercised its constitutional authority to "remove such disabilit[ies]" by enacting legislation lifting the "political disabilities imposed by" Section 3 of the Fourteenth Amendment "from all persons whomsoever" with the exception of certain high-ranking federal officers who had joined the Confederacy.

The issue currently before us is whether that same 1872 legislation also prospectively lifted the constitutional disqualification for all future rebels or insurrectionists, no matter their conduct. To ask such a question is nearly to answer it. Consistent with the statutory text and context, we hold that the 1872 Amnesty Act removed the Fourteenth Amendment's eligibility bar only for those whose constitutionally wrongful acts occurred before its enactment.


The most fundamental problem with Representative Cawthorn’s proposed interpretation is that the Act’s operative clause refers to those “political disabilities imposed ” in the past tense rather than new disabilities that might arise in the future. The past tense is “backward-looking”; it refers to things that have already happened, not those yet to come. Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011). Of course, we must consider the text not just as a modern reader would but also its “plain meaning at the time of enactment.” Tanzin v. Tanvir, 141 S. Ct. 486, 491 (2020). But  Representative Cawthorn has not argued that this elementary rule of conjugation has changed in the last hundred and
fifty years—likely with good reason. Cf. Blair v. City of Chicago, 201 U.S. 400, 465 (1906) (“This declaration is in the past tense, and can have no reference by any fair construction to future engagements.”).


...[T]he available evidence suggests that the Congress that enacted the 1872 Amnesty Act was, understandably, laser-focused on the then-pressing problems posed by the hordes of former Confederates seeking forgiveness. See Gerard N. Magliocca, Amnesty and Section Three of the Fourteenth Amendment, 36 Const. Comment. 87, 111–21 (2021). Those problems were partly logistical: Using individual “private bills to remove Section Three disabilities” fostered  favoritism,” and the “thousands” of applications threatened to “overwhelm[]” Congress. Id. at 112; accord Cong. Globe, 42d Cong., 2d Sess. 3253 (1872) (Senator Pratt) (“[T]he exclusion of these men from office is a fruitful source of discontent . . . . These disabled people are constant grumblers. They parade their griefs every day.”). But matters of principle were also at stake, because President Grant and others argued that keeping large categories of people out of office was ineffective in excluding noxious ideas if those ideas were held by a majority of their constituents. See Magliocca at 115–16. And even though the debates over amnesty occupy scores of pages in the Congressional Globe,
neither the district court nor Representative Cawthorn has cited any statement by any member of Congress referencing the treatment of future insurrectionists.

Agreed, as noted here (criticizing the district court decision to the contrary).  I like the structure of the court of appeals decision:  close textual analysis (some of which is omitted in the quotes above), which establishes a presumptive textual reading, and then a look at the history and context to confirm.

At Volokh Conspiracy, Samuel Bray notes that this is in part an application of the "mischief rule" -- that is, interpreting a provision in accordance with the "mischief" at which it was directed.  As this case illustrates, I think that rule is an appropriate tool of originalist interpretation if used carefully.  In particular, it can be used to resolve a textual ambiguity or (as here) to confirm a probable textualist  interpretation; it shouldn't be used, though, to go against the text (as it is sometimes).

But:  I also agree with Judge Richardson, concurring in the judgment, that the whole issue is precluded (as to Members of Congress) by Article I, Section 5 of the Constitution:

[U]nder Article I, section 5, clause 1 of the Constitution, the House "shall be the Judge of the Elections, Returns and Qualifications of its own Members." The House of Representatives here is not just a judge, it "is the sole judge of the qualifications of its members."

To reach that conclusion, I work through four premises. I start by explaining that Art. I, § 5, cl. 1 of the Constitution is a jurisdictional bar on a federal court's power to determine the qualifications of a member of Congress. Then I explain how, under Supreme Court precedent, there is no meaningful distinction between judging a member's qualifications and pre-judging a candidate's qualifications. Next, I show why Section 3 of the Fourteenth Amendment is one of the "Qualifications" of membership in the House of Representatives, under the meaning of Art. I, § 5, cl. 1. Those premises together show that courts have no jurisdiction to "judge" a candidate's qualifications under § 3. From there, I conclude by showing why the district court's interpretation of the 1872 Amnesty Act as applied to Representative Cawthorn amounts to a judging of his § 3 qualification. Taken together, these premises prove that the district court had no jurisdiction to proceed on Representative Cawthorn's claim under the 1872 Amnesty Act. While I respect the district court's hesitation to decide core constitutional questions and rely on a statutory ground, that choice was unavailable because the Constitution leaves this question—how the 1872 Amnesty Act applies to Representative Cawthorn's qualifications for office—to the House of Representatives alone….

I would call this a rare case of a "political question" in the form of a determination textually committed to another branch.  Or to put it another way, giving courts the power to decide the qualifications of Members in contested cases is "repugnant to" (in Hamilton's words for an irreconcilable conflict) the House's power to decide them.

RELATED: At New Reform Club, Seth Barrett Tillman presses an alternative reason the whole case should have been dismissed: Section 3 of the Fourteenth Amendment (he says) isn't self-executing per Griffin’s Case, 11 F. Cas. 7, 26 (C.C.D. Va. 1869):

Griffin’s Case is good persuasive authority. Prior to 2021 that was widely, if not universally, recognized. To put it another way, if Griffin’s Case was correctly decided, then state and federal executive branch officers (and other applicants in ballot contests) cannot rely on Section 3 of the Fourteenth Amendment to disqualify an alleged insurrectionist candidate from the ballot for a federal position absent federal statutory authorization. Apparently, no such federal statutory authorization (now) exists. Likewise, if an alleged insurrectionist already holds a federal office, then federal executive branch officers cannot remove the person from office (e.g., in quo warranto proceedings) based on Section 3 absent federal statutory authorization to do so.

Furthermore, if Griffin’s Case is good law or correctly states the law, then the Cawthorn plaintiffs lack a cause of action, as do other similarly situated plaintiffs in other Section 3 cases. If the plaintiffs lack any valid or cognizable cause of action, then the federal courts lack jurisdiction to hear the case. In those circumstances, jurisdiction should have been discussed prior to any discussion of Cawthorn’s Amnesty Act defense (and the plaintiffs’ responses to that defense), and the entire case should have been dismissed for lack of jurisdiction.

Judge Richardson doubted that Griffin’s Case is good law due to an apparent conflict with another early case, In re Davis, 7 F. Cas. 63, 90 (C.C.D. Va. 1871), but in the post Professor Tillman explains why he sees no conflict.


Aaron Coleman on John Phillip Reid
Michael Ramsey

At Law & Liberty, Aaron Coleman (University of the Cumberlands -- History): John Phillip Reid's Constitutional Achievement. From the introduction: 

John Phillip Reid, prolific scholar of early American constitutional and legal history, passed away on April 6, 2022, at 91. Spending his entire career at NYU Law, Reid established himself as one of the most erudite and penetrating minds in the field of American constitutional and legal history.

... His work on the constitutional dimensions of the Revolution challenged both the progressive interpretation, which viewed the conflict through the lens of socio-economic conflict, and the ideological school, which connected the American arguments to the republican intellectual tradition. Both schools, he believed, failed to grasp the essence of the era’s thinking. The American Revolution, he concluded, was concerned predominantly with the nature of the British constitution. By supplying the forgotten constitutional context to the modern historical debate, Reid’s scholarship left an indelible mark on our understanding of the Revolution. His passing offers a chance to remember his often unappreciated work.

Reid first made his case for the constitutional nature of the American Revolution in a series of lengthy law review articles and works comparing the “conditions of the law in Ireland and Massachusetts” and the concepts of representation and liberty at the time of the Revolution. His full-throated correction, however, came in his magnum opus, the four-volume, Constitutional History of the American Revolution (1988-1993). Each volume concentrated on one aspect of English constitutionalism: The Authority of Rights; The Authority to Tax; The Authority to Legislate; and The Authority of Law. In 1995, he produced a surprisingly slim, single-volume abridged edition. The collection remains, and probably will remain, the single most important constitutional analysis of the Revolution. It deserves a far wider readership than it has received and should be considered the equal of and, in some ways, a necessary correction to Bernard Bailyn’s Ideological Origins of the American Revolution.  

Perhaps the most crucial element of Reid’s work was his disentanglement of the constitutional from the ideological. Much of what the “intellectual school” labeled republicanism, he argued, came “straight out of the literature of the common law, from the writings of Sir Edward Coke, Sir Matthew Hale, and even Sir William Blackstone.” This common law mind, with its emphasis on the assumptions, customs, traditions, and values of the British constitution, shaped the Revolutionary debate and centered it on “constitutional anxieties.” Reid’s emphasis on the constitutional dimensions of the debate stood in stark contrast with the ideological school’s construction of a “comprehensive system of thought in which constitutionalism was one contributing element of the contemporary world view.” Essentially, the ideological school made constitutionalism a supplement to the larger ideological argument rather than the primary motivator. This is not to say that Reid dismissed the findings of “intellectual school”—indeed, he often praised their work—but he saw it as his goal to correct, sharpen, and refocus those arguments to bring actual constitutionalism back into the story.   


The Debate about “the” Original Meaning of the Fifth Amendment’s Due Process Clause
David Weisberg

Lawrence Solum and Max Crema have engaged, on this blog, in an interesting debate with Andrew Hyman regarding the proper interpretation of the phrase “due process of law” in the Fifth Amendment.  The former hold that the original meaning of the phrase “only requires that the federal government secure the appropriate (or ‘due’) writ or precept before depriving an individual of life, liberty, or property”, while Hyman contends that the phrase “basically meant proceedings owed according to both procedural and substantive law, including writs established by law, as modified by later federal statute law and the U.S. Constitution.”  (Emphasis added.)

I want to comment on one aspect of the debate.  Solum and Crema say this about their methodology:    

To answer [the] question [how the phrase “due process of law” was understood in 1791], we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.

In light of the foregoing, I think it is obvious that it cannot “plainly” or in any other way be said that, when the founding generation spoke of “process,” they meant writs.  The very results documented by Solum and Crema establish that the phrase, as used by the founding generation, was ambiguous—sometimes (most frequently) it had a relatively narrow meaning (that is, limited to procedural writs), but other times (less frequently) it had a broader meaning (encompassing both procedural writs and substantive law).  The less frequent meaning, by Solum and Crema’s own reckoning, was not anything like infinitely vanishing in frequency.  Twenty-six percent or even sixteen percent is not close to zero percent.  

Ambiguity was a feature of language in 1791, just as it is today.  If the original meaning of a phrase was ambiguous, one cannot properly determine the original meaning of the phrase by focusing on the most frequent meaning.  (What would Solum and Crema have decided if the frequency of the narrow meaning had been 51%?)  An ambiguous phrase does not have one—that is, “the”—original meaning.  That is exactly what it means for a phrase to be ambiguous.  

In sum, if we can ascertain today, in 2022, that the phrase “due process of law” was ambiguous in 1791, then it would seem very likely that learned, intelligent people would have been fully aware, in 1791, of that same ambiguity.  Indeed, it could well be the case that the framers and ratifiers in 1791 settled on that phrase precisely because they knew it to be ambiguous; they themselves might have believed that, in certain factual settings, one meaning should be applied, while in other factual settings, the other meaning should apply.  I don’t believe any analysis based on corpus linguistics could ever disprove such a hypothesis.    

Michael Smith: The Present Public Meaning Approach to Constitutional Interpretation
Michael Ramsey

Michael L. Smith (Glaser Weil Fink Howard Avchen & Shapiro LLP) has posted The Present Public Meaning Approach to Constitutional Interpretation (Tennessee Law Review, Vol. 89, forthcoming 2023) (58 pages) on SSRN.  Here is the abstract:

Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism ultimately fall flat if critics fail to propose preferable alternative to originalism. After all, it takes a theory to beat a theory.

This Article proposes an alternate theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This straightforward alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer’s recent article, Unoriginal Textualism, argued for the theory’s feasibility. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited.

This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach to constitutional interpretation is a better means of constraining judges, and leads to judicial decisionmaking that is more transparent and predictable. It also better achieves goals of democratic legitimacy by taking into account modern views on indeterminate, value-laden language in the Constitution and its amendments and by accounting for significant expansions in the right to vote since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles originalism faces, and is more likely to lead to desirable results by better accounting for present circumstances.

This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is still preferable to originalism—avoiding numerous shortcomings and critiques against originalist methodology, and preferable in light of many normative considerations that originalists claim to honor. Originalists must therefore take the present public meaning approach seriously when defending their theories of constitutional interpretation.

Often, especially as to technical provisions, I think present public meaning doesn't differ that much from original public meaning, which is why (in my view) original meaning originalism is, or should be, heavily textualist. But sometimes it does, and I'm not sure of the justification for letting our basic law be determined by random changes in language.  More importantly, though, I think in many cases the present public meaning isn't distinct from what one thinks the Constitution ought to mean.  Consider "due process of law": does its modern meaning include "substantive" due process?  That question isn't really separable from whether one thinks it should include "substantive" due process. Thus it is not really an objective test.


Eric Segall on New Originalism (with my Objections)
Michael Ramsey

At Dorf on Law, Eric Segall: The Concession that STILL Dooms Originalism.  From the core of the argument: 

Under the New Originalist approach, and in the [in]famous construction zone, judges have discretion to bring an almost endless array of post-ratification facts and changed cultural values into consideration when resolving constitutional cases, diluting any meaningful constraining effect of the text’s original meaning. For example, I previously quoted Professor Solum himself for the following proposition shared by most New Originalists: 

[I]n Bradwell v. Illinois, the Supreme Court upheld Myra Bradwell’s exclusion from the Illinois bar on the basis of gender. . . . Bradwell could have been understood as consistent with the [Privileges and Immunities Clause] by Justices who believed that women were intellectually incapable of functioning as competent lawyers. The opposite result would be required [today] given true beliefs about women’s intellectual capacities. Fixed original public meaning can give rise to different outcomes given changing beliefs about facts. The Constraint Principle does not require constitutional actors to adhere to false factual beliefs held by the drafters, Framers, ratifiers, or the public.

Notice that Solum does not merely refer to changed facts but "changing beliefs about facts." This idea is similar to Professor Barnett's belief, echoed by almost all New Originalists, that judges today can discard expected applications, like women are not protected from discrimination in public employment by the 14th Amendment, if facts (read values) have changed (enough). It is on a similar principle that Professor Barnett once expressed that he "is sympathetic" with Professor Jack Balkin's claim that Roe v. Wade could be justified on an originalist basis even if no one in 1868 thought that abortion was a constitutionally protected right. 

But the constitutional text that gives rise to almost all modern lawsuits was ratified in either the late 18th or middle 19th centuries, when our country was different in most material ways than today relevant to lawsuits that are brought today. What all of that means is that this form of originalism (without super-strong deference) is indistinguishable from living constitutionalism, or for that matter common good constitutionalism. There is simply no constraint on judges from this form of originalism in litigated constitutional cases.

He goes on to argue:

The non-delegation doctrine is all the rage today among many originalists. But even if there was a strong originalist basis for that view (and there isn't), a judge could always say, "well, we now know what caused the New Deal and that changes how judges deal today with the expected non-delegation doctrine.” Similarly, let's say the unitary executive theory has a sound originalist basis. But no one in 1789 could destroy the world by pushing a few buttons. That new fact could make a huge difference in how we view the war-making power and under what circumstances the President can fire people or not in the chain of command or whether the President can use offensive weapons to kill US citizens abroad who we think are are terrorists but no court has so found. The point is there are always changing facts relevant to all litigated constitutional cases that involve text written so long ago. And remember, a judge does not have to find the facts have actually changed, just that beliefs about facts have changed.

Neither Professor Solum nor Barnett has ever responded to this argument, though they are well aware of it. In fact, I made this argument in a room they were both in at the San Diego Originalism Conference in February. 

I can't speak for Professors Solum and Barnett, and I don't really consider myself a New Originalist (not with capital letters, anyway). But I think there's a fundamental difference between the Bradwell example and the separation of powers examples Professor Segall gives.

His examples are ones in which a judge concludes, based on new experiences, that the structure established by the Constitution's original meaning is normatively bad, and so decides to change it.  I'll take the unitary executive point, as I know that area the best.  Assume Justice Scalia's view in Morrison v. Olson is correct as an original matter -- that is, the original meaning was that all of the executive power had to be vested in the President or someone fully controlled by the President.  The modern presidency is of course different from the eighteenth century version on many dimensions.  That may make the framers' design unwise.  But it does not change the original meaning of the Constitution or the way it would apply to modern circumstances, which is that all of the executive power had to be (and today must be) vested in the President or someone fully controlled by the President.  No fact relevant to the application of the original meaning has changed, although facts relevant to the wisdom of the original meaning may have changed.  I think no originalist would allow the application of the original meaning to change in these circumstances.

Contrast Bradwell:  assume the original meaning of the relevant clause was that generally people must be treated equally with respect to certain rights, including practicing law, but differences were tolerated where people were differently situated.  Further assume that the reason the Court upheld the ineligibility of women in Bradwell was the (mistaken) factual claim that women were differently situated with respect to practicing law.  We now know the factual claim was mistaken.  One might well say, then, that the original meaning now applies differently.   That's not because we think the original meaning needs to change in light of new circumstances.  The original meaning hasn't changed: the meaning is still that generally people must be treated equally with respect to certain rights, including practicing law, but differences may be tolerated where people are differently situated.  Rather, it's because we now understand that people originally thought to be differently situated are not differently situated.  The change is not in meaning, but in facts underlying how the meaning is applied.  That's completely different from the unitary executive example, where the meaning itself would have to change to yield a different result.


Kurt Lash: Roe and the Original Meaning of the Thirteenth Amendment
Michael Ramsey

Kurt T. Lash (University of Richmond School of Law) has posted Roe and the Original Meaning of the Thirteenth Amendment (16 pages) on SSRN.  Here is the abstract:

The current debates over Roe v. Wade as a substantive due process right have prompted a number of scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery" and "involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument concede that the right to abortion was not the expected application of the Thirteenth Amendment, but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.

This essay explores the history behind the adoption of the Thirteenth Amendment and conclude the pro-Roe reading of the Thirteenth Amendment is incorrect. The original meaning of the Thirteenth Amendment is defined by the text upon which it was based and defended: The 1787 Northwest Ordinance. The framers of the Amendment intentionally used this text precisely because it was well known and had a narrow historical meaning. As used in the Ordinance, the terms “slavery and involuntary servitude” referred to a specific and legally codified “private economical relation” between a “master” and a “servant.” Under slavery--the most severe form of “involuntary servitude”--both the women and the unborn child were considered property equally subject to dismemberment or destruction. The Thirteenth Amendment applied the prohibitions of the Ordinance throughout the United States and forever abolished the idea that one could hold “property in man.” However, nothing in the Amendment (or the Ordinance) affects laws restricting the termination of a pregnancy—laws that were common throughout antebellum America.


James Heaney on Originalism and the Dobbs Draft Opinion
Michael Ramsey

At Law & Liberty, James Heaney: Kindling a New Originalist Fire.  From the core of the argument: 

The leaked draft majority opinion, by the “practical originalist” Justice Samuel Alito, would indeed be a significant victory for pro-lifers, should it become official. Yet the draft not only does not depend on originalist textualism; it bears almost no evidence of being influenced by originalism at all!


Roe v. Wade and its sequel, Planned Parenthood v. Casey, located a constitutional right to abortion in the “due process” clause of the Fourteenth Amendment (or, alternatively, in the Ninth Amendment). An originalist  Dobbs  decision would begin with a fair but thorough evaluation of the original public meaning of the due process clause, before proceeding to the textual basis for “substantive due process” rights, their application (if any) to abortion, and the meaning and justiciability of the Ninth Amendment. This opinion would consider historical and semantic evidence regarding the Amendments’ objective meaning, according to the understanding of a reasonable person at the time of their adoption; the Amendments’ expected applications, insofar as they revealed the objective principles the Amendments embody; and finally, the application of that objective meaning to the question of abortion, using tools of constitutional interpretation or construction as appropriate. The result of this inquiry would likely foreclose not only a constitutional right to abortion, but, if Justice Thomas’s unflinching originalist case law is any indication, the entire line of substantive due process cases as well.

Fortunately for the entire line of substantive due process cases, Alito’s draft majority does nothing of the sort. Alito accepts without question the existence of substantive due process rights and their grounding in the Fourteenth Amendment. He likewise accepts the entire body of precedents that guide “discovery” of substantive due process rights. The only precedents Alito dares to doubt are Roe and Casey themselves. Those are the cases directly challenged by Mississippi in its arguments to the Court, so the opinion limits itself to those cases. The opinion does favorably cite cases from the textualist “anti-canon,” such as Griswold (albeit indirectly), but the reader will ctrl-F in vain for a single reference to “original public meaning” in Alito’s draft majority.

Having accepted substantive due process rights and the entire body of case law built on them, Justice Alito turns to the question of whether Roe (and, by extension, Casey) were correctly decided. In short, rather than analyzing them on sturdy originalist terrain, Alito chooses to confront Roe and Casey on their home turf. He grants them every advantage, every precedent they ask for, every interpretive standard they rely on—no matter how far afield it may take him from the original public meaning of the Constitution. After construing everything in their favor, Alito then asks whether  Roe or Casey demonstrate a constitutional right to abortion, according to their own putative standards.

So will Justice Thomas have a concurrence taking the originalist approach? (I suspect so).


Crema and Solum Reply to Hyman
Max Crema and Lawrence Solum

We are grateful for Andrew Hyman’s engagement with our recent article on the original meaning of “Due Process of Law” in the Fifth Amendment.  The key question for originalists is the meaning of “due process of law” in 1791.  To answer that question, we trace the history of the phrase from the fourteenth century through to the founding-era.  We then investigate how “process,” “process of law,” and “due process of law” were used in founding-era documents, employing both traditional methods of historical research and methods associated with corpus linguistic analysis.  We conclude that the original meaning of the Fifth Amendment’s Due Process of Law Clause is much narrower than previously suspected, and only requires that the federal government secure the appropriate (or “due”) writ or precept before depriving an individual of life, liberty, or property.

Although Hyman briefly touches on our founding-era evidence (more on that later), he principally focuses on the meaning of “due process of law” in early English history.  Hyman suggests that “due process of law” was “essentially synonymous” with a much broader and more expansive term, “law of the land,” and therefore concludes our narrow definition of the phrase is mistaken.  We do not agree and offer this response.

As we set out at some length in our article, “law of the land” had a much broader meaning than “due process of law.”  According to Sir Edward Coke, “law of the land” meant the “legem angliae” (the law of England) and encompassed “the Common Law, Statute Law, or Custom of England.”  2 Edward Coke, The Institutes of the Laws of England 46, 51 [hereinafter Institutes].  Coke’s Institutes regularly uses “law of the land” to refer to England’s substantive laws, writing, for example, that a child born during the period of his parents’ engagement will be deemed mulier—born in wedlock—“by the law of holy church . . . albeit by the law of the land he is a bastard.”  1 Institutes 244 (emphasis added).  Coke’s writings are full of similar examples (many of which are documented in our article).  As Justice Powys’ opinion in Regina v. Paty explains: the meaning of “law of the land” is “not confined to the common law, but takes in all the other laws, which are in force in this realm.”

“Due process of law,” by contrast, was defined much more narrowly.  As the late-Justice Scalia once explained, the “historical evidence suggests that the word ‘process’ in [‘due process of law’] referred to specific writs employed in the English courts.”  Our article charts this evidence in detail.  For now, however, it is enough to point to Coke’s own understanding of “due process of law,” which he defined to mean “indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.”  2 Institutes 50. 

Coke believed the “law of the land” meant the “the Common Law, Statute Law, or Custom of England” while “due process of law” meant writs, specifically “indictment or presentment [or] writ original of the Common Law.”  The concepts were related, but distinct.  Indeed, Coke is fairly clear that he understood these phrases to mean different things, explaining: “[N]o man can be taken, arrested, attached, or imprisoned but by due proces[s] of Law, and according to the Law of the Land.”  Id. at 52 (emphasis added); see also Ryan C. Williams, The One and Only Substantive Due Process Clause, 120 Yale L.J. 408, 429 n.82 (2010) (collecting similar statements by Coke that “seem to imply a distinction between the two concepts”).

Hyman’s post never grapples with this evidence of divergent meanings but instead points to a single passage from Coke that, he claims, “clearly” equates “law of the land” with “due process of law.”  Hyman is in good company; this passage has long been relied upon to equate the two terms.  In our article, however, we join the growing number of scholars to question this view and spend an entire section (which Hyman does not engage) explaining why it is mistaken.  We will not repeat our arguments here, except to note that the very passage Hyman relies on itself defines ‘by due process of law’ to mean: “by indictment or presentment of good and lawful men, where such deeds be done in due manner, or by Writ original of the Common Law.”

Hyman claims that this sentence—which focuses on “indictment,” “presentment,” or “writ original” (all forms of process)––somehow has little to do with writs and is all about courtroom procedure.  According to Hyman, the words “in due manner” indicate that Coke intended to gesture towards something suspiciously like modern procedural due process doctrine.  But that reading is implausible: grammatically the “due manner” clause modifies the preceding “indictment or presentment” clause and not the sentence as a whole.  That makes sense—indictments and presentments were historically the province of grand juries.  At most, Coke is stating that the proper forms must be followed in securing the “due process” issued by the grand jury.  Hyman is correct that Coke is paraphrasing a statute from 1351 (not 1352), but that statute hurts, rather than helps, Hyman’s reading of Coke because the statute is even more clear that the “due manner” language refers to grand jury proceedings (or their equivalent), reading:

[N]one shall be taken by petition or suggestion made to our lord the King, or to his council, unless it be by indictment or presentment of good and lawful people of the same neighbourhood where such deeds be done, in due manner, or by process made by writ original at the common law . . . .”

1351, 25 Edw. 3 c. 4.

Hyman’s reading of this single passage from Coke is plausible if the passage is considered in isolation, but it is not the best reading.  And Hyman’s reading rapidly becomes untenable in view of the considerable evidence that Coke understood “due process of law” and “law of the land” to mean different things.  Moreover, Coke’s views—while important—are not dispositive of the ordinary meaning of the Fifth Amendment’s Due Process of Law Clause.  Our article discusses Coke at length because he is the traditional go-to for those who would define “due process of law” expansively, but the real question is how the phrase “due process of law” was understood in 1791. 

To answer that question, we analyzed more than 600 different founding-era sources.  First we used methods associated with corpus linguistic analysis to understand how founding-era Americans used the terms “process” and “process of law.”  Our results were surprising.  We found that “process” was used narrowly to mean writs (rather than more broadly to mean legal procedure) in 84% of sources.  The same was true for “process of law” in 74% of sources.  To put it plainly: when the Founding generation spoke of “process,” they meant writs.

We then examined a wide collection of colonial American documents that use the phrase “due process of law,” including colonial declarations of rights, early statutes, case reports, and legal treatises.  We once again found that most of these documents used “due process of law” to mean writs, rather than procedure.  As one popular Founding-era legal handbook (co-published by Benjamin Franklin) explained: “due process of law” meant “Indictment, or Presentment of good and lawful Men of the Place, in due Manner, or by Writ original of Common-Law,” and required that all seizures and commitments be made only upon “lawful authority” as conferred by a “Warrant or Mittimus.”

Hyman’s post discusses only two of our 600+ founding-era sources.  Hyman explains, without elaboration, that he has disregarded the bulk of the historical record because he is only “interested in how the term ‘due process of law’ was used in a context similar to the Due Process Clause.”  But the sources Hyman chooses to discuss—the above quoted legal handbook and a newspaper report of a speech by Alexander Hamilton—almost seem picked at random.  Although we do discuss these sources in our article, more obvious analogues to the Bill of Rights abound.  For example, Hyman might have considered our discussion of early colonial declarations of rights that use the “due process” language (pp. 492–95), the New York Rights Act of 1787 (pp. 497–99, 520–21), or New York’s Ratification Letter, which likely served as the inspiration for the Fifth Amendment’s Due Process of Law Clause (pp. 507–508).  We discuss these sources (and many more) in our article and urge interested readers to download a copy.

Turning to Hyman’s chosen terrain, we do not agree that the Conductor Generalis has little to add.  It was likely the most popular legal hornbook of the founding-era, widely used by both lay people and educated lawyers.  See John A. Conley, Doing It by the Book: Justice of the Peace Manuals and English Law in Eighteenth Century America, 6 J. Legal Hist. 257, 283 (1985).  The hornbook defines “due process” to mean “indictment,” “presentment,” or “writ original.”  It then goes on to explain:

[S]eeing that no man can be taken, arrested, attached, or imprisoned, but by due process of law, and according to the law of the land, these conclusions hereupon do follow:

1. That the person or persons which commit any have lawful authority.

2. It is necessary that the warrant, or mittimus, be lawful, and that [it] must be in writing under his hand and seal.

The hornbook’s list goes on, but you get the idea.  The right to “due process” meant the right to not be “taken, arrested, attached” etc. without a lawful warrant.

Finally, we come to Hamilton’s much debated comments on “due process” and “law of the land.”  The sole surviving report of Hamilton’s speech is vague, and its internal inconsistencies mean that there is something for everyone.  Compare Frederick Mark Gedicks, An Originalist Defense of Substantive Due Process, 58 Emory L.J. 585, 630–32 (2009) (concluding Hamilton supported substantive due process) with Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85 (1982) (concluding Hamilton supported a weak procedural due process).  For example, Hyman elides that Hamilton discusses “law of the land” and “due process of law” separately and offers different definitions for each, undermining Hyman’s overarching argument.  Like much of the literature, we do not attach significant weight to these comments.

Our article advances a new understanding of the Fifth Amendment’s Due Process Clause, built on an exhaustive review of the available record.  We urge those who doubt our conclusions to read the article and consult the primary sources.

Crema and Solum on Due Process
Andrew Hyman

As Michael Ramsey recently described on this blog, Max Crema and Lawrence Solum have authored a new article arguing that the words “due process of law” in the Fifth Amendment of the U.S. Constitution originally had a much narrower meaning than the words “law of the land” in the Magna Carta. This is an instance where our current laws use ancient phrases, so studying some ancient history is necessary (SNL notwithstanding).

It's important to keep in mind that the word “process” had more than one meaning.  According to the leading law dictionary of the eighteenth century, “First, it is largely taken for all the proceedings in any action, real or personal, civil or criminal, from the beginning to the end; secondly, we call that the process by which a man is called into any temporal court….”  If the broader meaning is used, then the phrase in the Fifth Amendment matches up better with Magna Carta, whereas Crema and Solum support a narrower meaning.

As best I can tell, the framers of the Fifth Amendment would have understood the phrase “due process of law” in accord with binding judicial precedent.  The Queen’s Bench in 1704 had decided the case of Regina v. Paty (92 Eng. Rep. 232, 234), in which Justice Littleton Powys wrote:

By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority. And the law of Parliament is as much a law as any, nay, if there be any superiority this is a superior law.

As far as I know, this opinion by Justice Powys became a binding judicial precedent, and was part of American law after 1776 by virtue of the reception statutes enacted by the former colonies; I am not aware that Crema and Solum disagree on this point.  Moreover, this opinion by Justice Powys seems easily reconcilable with what Edward Coke had written early in the previous century:

But by the Law of the Land. For the true sense and exposition of these words, see the Statute of 37 E. 3. cap. 8, where the words, by the law of the land, are rendred, without due process of law, for there it is said, though it be contained in the great Charter [Magna Carta], that no man be taken, imprisoned, or put out of his free-hold without proces of the Law; that is, by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law. Without being brought in to answere but by due Proces of the Common law. No man be put to answer without presentment before Justices, or thing of record, or by due proces, or by writ originall, according to the old law of the land. Wherein it is to be observed, that this chapter is but declaratory of the old law of England.

Coke says here that “the words, by the law of the land, are rendred, without due process of law.” He also says here that “due process of law” is the “sense and exposition” of the term “law of the land.” That is why these two concepts have so often been understood as essentially synonymous by the great majority of judges and scholars who have addressed the matter.  As Justice Scalia correctly wrote in a 1991 concurrence: “Coke equated the phrase ‘due process of the law’ in the 1354 statute with the phrase ‘Law of the Land’ in Chapter 29 of Magna Charta….”

In contrast, Crema and Solum point to Coke’s phrase (in the block quote above) “by indictment or presentment of good and lawfull men, where such deeds be done in due manner, or by writ original of the Common Law.”   We should interpret that phrase, if possible, consistently with what Coke already wrote in the same sentence, so that the words “in due manner” mean that the whole proceeding against a defendant must be done in a manner that is due according to law.  Certainly, it would not be proper to interpret that phrase to mean “by indictment or presentment of good and lawfull men … or by writ original of the Common Law,” without proving that the material hidden by the ellipsis added nothing meaningful, especially since the “due manner” language was explicitly included in a 1352 statute. In my opinion, Coke was clearly equating “law of the land” with “due process of law,” and thereby affirming that the 1354 explanation of Magna Carta was just as protective as was the original Magna Carta in 1215.  

Although Crema and Solum focus on how “process,” “process of law,” and “due process of law” were used in founding-era documents, I am more specifically interested in how the term “due process of law” was used in a context similar to the Due Process Clause in the decades leading up to 1791 (the year before the Bill of Rights was ratified).  This narrow focus is justified because a word having more than one meaning is sometimes used in a sense that is less common, for example in this sentence: "I am not sensible of having done anything wrong.”  That is not an admission of being unwise or imprudent, but merely a statement that a person does not perceive having done anything wrong.  I have carefully looked at the interesting historical evidence presented by Crema and Solum that satisfy the narrow search criteria that I have described, but they do not change my mind.  For example, they quote a manual titled Conductor Generalis published in New York in 1764 which says this:

Or by the law of the land: That is, by due process of law, for so the words are expresly expounded by the statute of 37 E. 3. chap. 8. And these words are specially to be referred to those foregoing, to whom they relate. As none shall be condemned without a lawful trial by his peers, so none shall be taken, imprisoned, or put out of his freehold, without due process of law, that is, by the indictment or presentment of good and lawful men of the place, in due manner, or by writ original of common law.

I do not see that this Conductor Generalis significantly modifies what Lord Coke had said.  

Another major source that Crema and Solum cite is Alexander Hamilton's discussion in the New York legislature about New York’s statutory Due Process Clause, although they acknowledge Hamilton was somewhat unclear.  Hamilton said:

[The state constitution says] no man shall be disfranchised or deprived of any right he enjoys under the constitution, but by the law of the land, or the judgment of his peers. Some gentlemen hold that the law of the land will include an act of the legislature. But Lord Coke, that great luminary of the law, in his comment upon a similar clause, in Magna Charta, interprets the law of the land to mean presentment and indictment, and process of outlawry, as contradistinguished from trial by jury. But if there were any doubt upon the [state] constitution, the [statutory] bill of rights enacted in this very session removes it. It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words "due process" have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.

First, note that Hamilton deferred to Coke.  Second, he says that due process refers to “process and proceedings of the courts” which suggests he was using a broad rather than narrow meaning of “due process.”  Third, he says due process “can never be referred to an act of legislature” which (assuming he was correct) merely meant that the courts had to be involved in dispensing due process, not that the legislature had to be uninvolved.

“Due process of law” in the Fifth Amendment basically meant proceedings owed according to both procedural and substantive law, including writs established by law, as modified by later federal statute law and the U.S. Constitution.  If I am correct about that, then that clause in the Fifth Amendment is mainly a restriction on the executive and judicial branches.  However, that does not rule out some limitation upon Congress. For example, Congress obviously may not authorize the President to deprive people of liberty without due process of law (further examples are described at page 30 of this article of mine).