04/11/2021

Judge James Ho on Lower Court Originalism
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Originalism in the Lower Courts: Judge Ho's dissental in Texas v. Rettig.  From the introduction: 

[Friday] the Fifth Circuit denied rehearing en banc in Texas v. Rettig. In February, the three-judge panel (Barksdale, Haynes, and Willett) issued a substitute opinion in that case. This case presented a challenge to an ACA regulation. The panel turned away Texas's nondelegation doctrine challenge.

Judge Ho, and four of his colleague, dissented from the denial of rehearing en banc: Judges Jones, Smith, Elrod, and Duncan. Here, I'd like to praise the five judges who dissented. They embraced a central plank of originalism in the lower courts: the refusal to extend non-originalist precedents, unless that extension is justified by the original mening of the Constitution. I have written about this concept in my article, Originalism and Stare Decisis in the Lower Courts.

And from Judge Ho's opinion (favorably citing San Diego-based Judge Patrick Bumatay of the Ninth Circuit):

As judges, we have sworn an oath to uphold the Constitution. So if we are forced to choose between upholding the Constitution and extending precedent in direct conflict with the Constitution, the choice should be clear: "[O]ur duty [is] to apply the Constitution—not extend precedent." NLRB v. Int'l Ass'n of Bridge, Structural, Ornamental, & Reinforcing Iron Workers, Local 229, AFL-CIO, 974 F.3d 1106, 1116 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc)….

"As inferior court judges, we are bound by Supreme Court precedent. Yet[] . . . judges also have a 'duty to interpret the Constitution in light of its text, structure, and original understanding.'" Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (quoting NLRB v. Noel Canning, 573 U.S. 513, 573 (2014) (Scalia, J., concurring)). "While we must faithfully follow [Supreme Court] precedent . . . , '[w]e should resolve questions about the scope of those precedents in light of and in the direction of the constitutional text and constitutional history.'" Id. (quoting Free Enter. Fund v. Public Co. Accounting Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), aff'd in part, rev'd in part and remanded, 561 U.S. 477 (2010)). See alsoe.g.Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring) (noting that an important purpose of rehearing en banc is "to better align our precedents with the text and original understanding of the Constitution" "where the Supreme Court has not yet ruled").

SOMEWHAT RELATED: Also on Friday, the Supreme Court vindicated Judge Bumatay's dissent in Tandon v. Newsom, summarily reversing the Ninth Circuit on the constitutionality of California's covid-oriented restrictions on indoor religious services. (Via Professor Blackman, here.)

04/10/2021

Seven (?) Originalist-Oriented Members on the Presidential Commission on the Supreme Court
Michael Ramsey

President Biden established the Presidential Commission on the Supreme Court of the United States on Friday by executive order.  The White House press release calls it "bipartisan group of experts on the Court and the Court reform debate."  There's some truth to that.  Already there's been widespread commentary and criticism regarding the membership, which I won't try to catalog.  I'll note one aspect of the membership:  by my count, there are seven originalist-oriented members:  Jack Balkin (Yale), Will Baude (Chicago), Judge Thomas Griffith (D.C. Circuit), Caleb Nelson (UVA), Adam White (GMU-Scalia), Keith Whittington (Princeton, political science), and me [ed.: well, that last one was unexpected].  Of course, that's out of 36.

At Volokh Conspiracy, Ilya Somin has more.

04/09/2021

Kevin Tobia, Brian Slocum & Victoria Nourse: Statutory Interpretation from the Outside
Michael Ramsey

Kevin Tobia (Georgetown University Law Center; Georgetown University - Department of Philosophy), Brian G. Slocum (University of the Pacific - McGeorge School of Law) and Victoria Nourse (Georgetown University Law Center) have posted Statutory Interpretation from the Outside (Columbia Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

How should judges decide which linguistic canons to apply in interpreting statutes? One important answer looks to the inside of the legislative process: Follow the rules that lawmakers contemplate. A different answer, based on the “ordinary meaning” doctrine, looks to the outside: Follow the rules that would guide an ordinary person’s understanding of the legal text. Empirical scholars have studied statutory interpretation from the inside — revealing what rules drafters follow — but never from the outside. This Article is the first empirical study of ordinary meaning as determined by ordinary people.

We first offer a novel framework for empirically testing interpretive canons. We argue that any empirical inquiry should test whether ordinary people implicitly invoke a canon in accordance with the circumstances that trigger its applicability. Implementing our framework, we recruited 4,500 people from the United States, as well as a sample of U.S. law students, to evaluate hypothetical scenarios that correspond to each canon’s triggering conditions. The results reveal that many existing interpretive canons reflect how ordinary people evaluate rules, but some popular canons do not.

The empirical findings support several implications, even beyond providing crucial evidence about which traditional canons “ordinary meaning” actually supports. First, interpretive canons are not a closed set. We discovered new canons that are not yet reflected as legal canons, including one we term the “non-binary gender canon” and another the “quantifier domain restriction canon.” Second, the results support a new understanding of the ordinary meaning doctrine itself, as one focused on the ordinary interpretation of rules, as opposed to the traditional focus on “ordinary language” generally. Furthermore, ordinary people interpret rules with an intuitive anti-literalism. This finding in particular challenges textualist assumptions about ordinary meaning.

We hope the Article initiates a new research program in empirical legal interpretation. If ordinary meaning is relevant to legal interpretation, interpreters should look to evidence of how ordinary people actually understand legal rules. We see our experiments as a first step in that new direction.

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

04/08/2021

LeFrak Conference at Michigan State on Free Speech and Intellectual Diversity on Campus
Michael Ramsey

Via Jonathan Adler at Volokh Conspiracy, today through Saturday the Michigan State University Department of Political Science's LeFrak Forum on Science, Reason and Modern Democracy is sponsoring a conference titled "Freedom of Speech and Intellectual Diversity on Campus."  Here is the schedule:

Keynote Address - Thursday, April 8, 5:00-6:30 pm EST

Randall Kennedy, "The Race Question and Freedom of Expression." Randall Kennedy is the Michael R. Klein Professor at Harvard Law School, preeminent authority on the First Amendment in its relation to the American struggle for civil rights.

 
Day One: Intellectual Diversity - Friday, April 9
  
11:30 am - 1:00 pm EST
 
Panel 1: What are the empirical facts about lack of intellectual diversity in academia and what are the causes of existing imbalances?

Paper: Lee Jussim, Distinguished Professor and Chair, Department of Psychology, Rutgers University, author of The Politics of Social Psychology. 

Discussant: Philip Tetlock, Annenberg University Professor, University of Pennsylvania, author of “Why so few conservatives and should we care?” and Cory Clark, Visiting Scholar, Department of Psychology, University of Pennsylvania, author of “Partisan Bias and its Discontents.”

2:00 pm - 3:30 pm EST

Panel 2In what precise ways and to what degree is this imbalance a problem?

Paper: Joshua Dunn, Professor and Chair, Department of Political Science, University of Colorado, co-author of Passing on the Right: Conservative Professors in the Progressive University.

Discussant: Amna Khalid, Associate Professor of History, Carleton College, author of “Not A Vast Right-Wing Conspiracy: Why Left-Leaning Faculty Should Care About Threats to Free Expression on Campus."

4:00 pm - 5:45 pm EST

            Panel 3What is To Be Done?

Paper: Musa Al-Gharbi, Paul F. Lazarsfeld Fellow in Sociology, Columbia University and Managing Editor, Heterodox Academy, author of “Why Care About Ideological Diversity in Social Research? The Definitive Response.”

Paper: Conor Friedersdorf, Staff writer at The Atlantic and frequent contributor to its special series “The Speech Wars,” author of “Free Speech Will Survive This Moment.”

Day Two: Freedom of Speech - Saturday, April 10

11:30 am - 1:00 pm EST

Panel 1:  An empirical accounting of the recent challenges to free speech on campus from left and right. What is the true character of the problem or problems here and do they constitute a “crisis”?

Paper: Jonathan Marks, Professor and Chair, Department of Politics and International Relations, Ursinus College, author of Let's Be Reasonable: A Conservative Case for Liberal Education.

Respondent: April Kelly-Woessner, Dean of the School of Public Service and Professor of Political Science at Elizabethtown College, author of The Still Divided Academy

2:00 pm - 3:45 pm EST

Panel 2: But is Free speech, as traditionally interpreted, even the right ideal? -- a Debate 

Ulrich Baer, University Professor of Comparative Literature, German, and English, NYU, author of What Snowflakes Get Right: Free Speech and Truth on Campus

Keith Whittington, Professor of Politics, Princeton University, author of Speak Freely: Why Universities Must Defend Free Speech.

4:30 pm - 6:15 pm EST

Panel 3: What is To Be Done?

Paper: Nancy Costello, Associate Clinical Professor of Law, MSU. Founder and Director of the First Amendment Law Clinic -- the only law clinic in the nation devoted to the defense of student press rights.  Also, Director of the Free Expression Online Library and Resource Center.

Paper: Jonathan Friedman, Project Director for campus free speech at PEN America – “a program of advocacy, analysis, and outreach in the national debate around free speech and inclusion at colleges and universities.”

The LeFrak Forum is an outstanding project that should be better known than it is.  I participated in one of their conferences (on immigration law and policy) several years ago.  Among other things, their commitment to intellectual diversity is notable.

04/07/2021

New Book: "The Hollow Core of Constitutional Theory" by Donald Drakeman
Michael Ramsey

Recently published, by Donald Drakeman (Notre Dame): The Hollow Core of Constitutional Theory: Why We Need the Framers (Cambridge University Press 2021).  Here is the book description from the publisher:

The Hollow Core of Constitutional Theory is the first major defense of the central role of the Framers' intentions in constitutional interpretation to appear in years. This book starts with a reminder that, for virtually all of Western legal history, when judges interpreted legal texts, their goal was to identify the lawmaker's will. However, for the past fifty years, constitutional theory has increasingly shifted its focus away from the Framers. Contemporary constitutional theorists, who often disagree with each other about virtually everything else, have come to share the view that the Framers' understandings are unknowable and irrelevant. This book shows why constitutional interpretation needs to return to its historical core inquiry, which is a search for the Framers' intentions. Doing so is practically feasible, theoretically defensible, and equally important not only for discovering the original meaning, but also for deciding how to apply the Constitution today.

Next week (Thursday, April 15) the Federalist Society will host an online discussion of the book, featuring Lawrence Solum and Keith Whittington:  Original Meaning or Framers' Intent? A New Book and an Age-Old Debate.  From the Federalist Society announcement:

In his new book, The Hollow Core of Constitutional Theory: Why We Need the Framers, historian Donald Drakeman argues that in order to properly interpret the Constitution, one must consider the will of the lawmakers—in this case, those founding fathers who framed the charter—and, more specifically, their decisions about both the ends and the means of the provisions they designed. In the face of ascendant "public meaning" originalism, this book seeks to revive the importance of the framers' intent in constitutional theory and interpretation.

Joining Mr. Drakeman to review his new book are two distinguished constitutional theorists, Professors Lawrence Solum of the University of Virginia and Keith Whittington of Princeton. All three will offer their views on the matters at hand in a discussion moderated by Judge Britt Grant of the 11th Circuit Court of Appeals.

Registration information for the event is at the link.

04/06/2021

Textualism and War Powers
Michael Ramsey

I have posted my article Textualism and War Powers (University of Chicago Law Review, Vol. 69, No. 4, p. 1543, 2002) (96 pages) on SSRN.  It's from quite a while back but I think it remains a significant contribution.  Here is the abstract:

This Article explores the eighteenth-century use of the phrase "declare war," with the goal of shedding some light upon the original understanding of the Constitution's Declare War Clause It finds that "declaring" war in the eighteenth century had a broader meaning than is commonly supposed. Nations could declare war by formal proclamation, but nations could also "declare" by action alone. An armed attack showing an intent to settle differences between nations by force created a state of war between those nation& Launching such an attack, even in the absence of a formal proclamation, was called "declaring" war. As the Article explains this provides a textual basis for the common assertion that Congress's constitutional power "to declare War" broadly encompasses the power to initiate warfare. It also refutes the claim that the President can order military attacks upon foreign powers without Congress's approval so long as no formal declaration is involved. The Article further argues however, that since Congress's constitutional power is only to declare war (by proclamation or by authorizing an attack), presidential actions that do not create a state of war-even if they involve the use of military force or the threat or likelihood of war-do not require congressional authorization.

The article was inspired by the apparent disconnect between the common assumption in the post-ratification period that the Constitution limited the President's independent ability to initiate war and the text's reference only to the power to "declare" war -- which sound like a reference only to formal pronouncements.  As the abstract indicates, on further investigation it seemed clear (to me anyway) that "declare" war was used in a much broader sense in the eighteenth century, referring not just to formal proclamations but also to commencement of hostilities.  Thus there actually isn't any tension between the text and the common founding-era interpretation of it.

Saikrishna Prakash in a subsequent article undertook a much more broad ranging investigation of eighteenth century sources and reached a similar conclusion about the meaning of "declare."  I think it's now a fairly common view among textualist/originalists.

Mike Rappaport adds: I should add that I believe this article is one of the most important articles produced during this recent period of originalist renaissance.  It took the text seriously, explained how it accorded with constitutional purpose and history, and did so with a novel and persuasive interpretation.  Of course, the interpretation wasn't novel in the sense that the Framers' generation did not know it.  Rather, later generations did not have the knowledge that the Framers' generation had.   

04/05/2021

Aaron Tang on Finding a Judicial Middle Ground
Michael Ramsey

At The Atlantic, Aaron Tang (Davis): The Simple Principle That Can Fix American Law -- What if a coherent legal philosophy could exist between the poles of living constitutionalism and originalism?  From the introduction:

... As a field, the law lacks a satisfying, middle-ground response to the core philosophical question that judges must face: By what legal theory should they decide difficult cases—ones in which the law is unclear and where any ruling risks inflaming division among the American people?

Liberal and conservative judicial approaches are, of course, well established. The late Ruth Bader Ginsburg captured the former approach when she testified during her confirmation hearings that the Constitution should be interpreted so as to govern “not just for the passing hour, but for the expanding future.” By contrast, her conservative successor, Amy Coney Barrett, is now the fourth self-professed originalist on the Court.

The rift between living constitutionalism and originalism is not merely an esoteric debate among judges. It is equally salient—and equally partisan—among the broader public. A recent Pew Research poll found that while 88 percent of liberal Democrats believe that the Supreme Court should “base its rulings on what the Constitution means in current times,” 79 percent of conservative Republicans say the Court should “base its rulings on the Constitution’s original meaning.”

But what is the judicial philosophy that occupies the middle ground? There is, of course, no way to split the temporal difference between originalism and living constitutionalism. Either the law’s meaning is fixed in time, or it isn’t. Some prominent academics have worked to re-brand originalism as itself a neutral and centrist approach. But on balance, the results have tended to track conservative views.

What America lacks today, in other words, is a judicial philosophy that can mediate the usual theories advanced on the left and the right. This absence might be every bit as much of a problem for our legal culture and legal system as the absence of centrist judges. Or, rather, it might be the underlying problem altogether. For without a compelling philosophy of judicial moderation, what hope is there for the reemergence of judicial moderates?

And from later on:

The year 2020 will long be remembered as a year of tragic and unparalleled adversity, from the onset of the deadly global pandemic, to glaring reminders of society-wide racial injustice, to Donald Trump’s ill-fated effort to steal the election. But even as we grieved, worried, and mobilized for change, something encouraging happened, unexpectedly, at the Supreme Court: The justices stumbled onto the beginnings of a compelling theory of judicial moderation.

It started last summer, at the end of one of the most monumental terms in recent history. Over a 25-day sprint, the Court handed down high-profile opinions concerning the rights of LGBTQ workers; the fate of hundreds of thousands of undocumented immigrants who had been brought to America as small children; impassioned efforts to obtain Trump’s private financial records; a controversial Louisiana abortion regulation; religious-school vouchers; and whether much of eastern Oklahoma remains an Indian reservation.

These cases raised genuinely difficult legal questions with enormous stakes. And in all of them, the Court’s decisions followed an intriguing logic. Rather than resting solely on some highly debatable conclusion as to a one-and-only “correct” meaning of the law—whether rooted in arguments over original meaning or in evolving precedent or societal values—the Court justified its rulings by pointing to an additional rationale: the goal of minimizing the harm of its decisions. The Court did so in a particular way—by identifying and ruling against the side with the greatest ability to avoid the harm it would suffer in defeat. (I’ve previously called this the “least harm principle.”)

I suspect, though, that the "least harm principle," at least in the hands of liberal judges or law professors, mostly yields liberal results (making it, of course, not a middle ground but repackaged liberal living constitutionalism).  But Professor Tang is mistaken in thinking that originalism and (liberal) living constitutionalism are the relevant poles.  As I've argued before, originalism is actually the middle ground between conservative living constitutionalism and liberal living constitutionalism, yielding conservative results sometimes and liberal results (or intermediate results) other times.  See, e.g., here (and also here and here).

04/03/2021

David Kopel & George Mocsary: Words Missing from the Ninth Circuit's Young v. State of Hawaii
Michael Ramsey

David B. Kopel (Independence Institute; Denver University - Sturm College of Law; Cato Institute) and George A. Mocsary (University of Wyoming College of Law) have posted Errors of Omission: Words Missing from the Ninth Circuit's Young v. State of Hawaii (21 pages) on SSRN.  Here is the abstract:

The en banc Ninth Circuit on March 24 held that the Second Amendment right does not encompass the open handgun carriage. The decision in Young v. State of Hawaii complements the Circuit’s 2016 en banc Peruta v. San Diego, which held that concealed carry is categorically outside the Second Amendment. Thus, according to the Ninth Circuit, a state may ban both open and concealed carry. There is no right to bear handguns. According to the Ninth Circuit, carrying arms in public for defense is “not within the scope of the right protected by the Second Amendment.” This Article examines the majority opinion on its own terms. Most revealing about the majority opinion is how it selectively quotes the sources that it cites. When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court. Although carrying defensive arms may be regulated, it may not be prohibited.

Professor Kopel has more at Volokh Conspiracy, including excerpts from the article.  From part of the evaluation of the opinion:

Young's lengthy survey of legal history begins in medieval England. The thesis of Young is that the 1328 Statute of Northampton outlawed all gun carrying except by persons in government service. Further, argues Young, the prohibition against carrying was part of English law ever since, was adopted in the American colonies, and continued to be widely enforced to prohibit carry well into the nineteenth century in the United States.

The problem with the thesis is that after 1600, the English courts did not so interpret the Statute. Rather it was applied only to carriers who caused a breach of the peace that terrorized the public.

According to the Ninth Circuit, the 1615 King's Bench case Chune v. Piott concluded that sheriffs could arrest a person carrying arms in public "notwithstanding he doth not break the peace." Justice Croke's seriatem opinion, however, reads

[I]f contrary to the Statute of Northampton, he sees any one to carry weapons in the high-way, to the terror of the King's people; he ought to take him, and arrest him, notwithstanding he doth not break the peace in his presence. (emphasis added).

Justice Houghton's opinion adds that the sheriff may arrest someone, "upon suspition."

By omitting "in his presence," Young turns Chune's actual rule (sheriffs can arrest even if they did not see the breach of the peace) into a different rule (sheriffs can arrest when there is no breach of the peace).

04/02/2021

If the Supreme Court Reviews Young v. Hawaii, It Might Well Make Bad Law Even Worse
David Weisberg

The recent en banc decision of the U.S. Court of Appeals for the Ninth Circuit in Young v. Hawaii held (7 to 4) that Hawaii’s restrictions on the open carrying of firearms in public do not violate the Second Amendment.  Prof. Ramsey wonders whether the case will reach the Supreme Court.  I fear that, if it does, the Court will only create further confusion and muddle in an area where it has already made bad law.

I’ve written an SSRN article entitled, “A Unique, Stand-Alone Second Amendment Implies that Both Heller and McDonald  Were Wrongly Decided.”  As we know, D.C. v. Heller, 554 US 570 (2008), held that the District violated the Second Amendment when it prohibited any resident from possessing an operable handgun in the home for self-defense.  McDonald v. Chicago, 561 US 742 (2010), held that, because the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment and applies it against the States, similar regulations imposed in Chicago also violated the amendment.  

The title of my article constitutes full disclosure, but limited space prevents full exposition of my arguments.  One startling fact can, however, be noted: Justice Scalia’s opinion for the 5 to 4 Heller majority—which he referred to in 2013 as his “legacy opinion”—is literally self-contradictory on its face.  Under the heading “Meaning of the Operative Clause,” Justice Scalia asserted: “[I]t has always been widely understood that the Second Amendment…codified a pre-existing right.  The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it ‘shall not be infringed.’ ”  (554 US at 592, emphasis in original.)  But, under the heading “Relationship Between Prefatory Clause and Operative Clause,” we find: “Does the preface fit with an operative clause that creates an individual right to keep and bear arms?  It fits perfectly, once we know the history that the founding generation knew[.]”  (554 US at 598.) 

Thus, in the course of six pages, the right to keep and bear arms morphed from one that (with Justice Scalia’s own emphasis) pre-exists the Second Amendment into one that the amendment “creates.”  A right can’t pre-exist, and also be created by, an amendment—it’s one or the other, but not both.  The fact that a judicial opinion is self-contradictory doesn’t prove that its announced result is bad law.  But a logically incoherent argument surely would make any thoughtful person extremely cautious about accepting the conclusion that argument supposedly supports. 

I think the fundamental error in Justice Scalia’s Heller opinion was his belief that “self-defense…was the central component of the right” referred to in the Second Amendment.  (554 US at 599, emphasis in original.)  Thus, the right referred to in the amendment partakes of, or is somehow related to, the natural right of self-defense.  But Justice Scalia also asserts that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in…schools and government buildings[.]”  (554 US at 626.) 

All these exceptions are inconsistent with the notion that self-defense is “the central component” of the right referred to in the amendment.  Felons and the mentally ill could all use firearms while legitimately acting in self-defense.  Similarly, anyone could have properly acted in self-defense, even if he or she used a firearm in a school or a public building.  If self-defense is “the central component” of the amendment, and all these persons might have used a firearm for legitimate self-defense, why are the “longstanding prohibitions” valid?   There are a multitude of other objections to Justice Scalia’s invocation of a link between the amendment and the right of self-defense, but space is wanting.    

I will simply submit that the source of the pre-existing right referred to in the Second Amendment is always positive law embodied in the constitution and laws of the States.  Therefore, the Second Amendment is violated only if the federal government purports to infringe a right granted by the laws of some State.  If, e.g., Congress purported to ban possession of handguns anywhere in the U.S., that ban would violate the Second Amendment where the law of a State or locality permitted such possession.

Moreover, if I’m correct that the amendment bars the federal government from infringing upon rights granted by a State’s law, then it would be logically impossible to incorporate the amendment in the Due Process Clause and apply it against the States, notwithstanding the contrary conclusion in McDonald.  If the amendment applies to the States, that would mean that the States, like the federal government, may not infringe upon the right of the people to keep and bear arms.  But Illinois banned the possession of handguns in Chicago.  Thus, Chicagoans had no right, under Illinois law, to possess handguns.  The Second Amendment (Justice Scalia emphatically insisted, when he was being duly careful) refers only to pre-existing rights; it does not create any rights.  Therefore, it is logically impossible for Illinois to infringe upon a right Chicagoans do not have.

Alas, none of the foregoing would likely figure into the Supreme Court’s review of Young v. Hawaii.  In my opinion, the majority reached the correct result in Young.  Yet the very first sentence of the dissent boldly asserts: “The Second Amendment to the United States Constitution guarantees ‘the right of the people to keep and bear Arms.’”  (Emphasis in original.)  But it doesn’t.  Putting the prefatory clause aside, the amendment says the right of the people to keep and bear arms shall not be infringed by the federal government. If that “guarantees” anything, it guarantees only that the right of the people to keep and bear arms shall not be infringed by the federal government.  And, in saying that that right shall not be infringed by the federal government, the amendment does not say that that right (which, on my analysis, exists only to the extent granted by the constitutions and laws of a State) shall not be limited, or even extinguished, by the State that created the right in the first place. 

Finally, I don’t think stare decisis could reasonably be invoked to preserve Heller and McDonald.  The very fact that Hawaii, like many other States, still stringently regulates firearms indicates that those two precedents have not ushered in a new regulatory regime that could not readily be dismantled.  Lawrence v. Texas (2003) overruled Bowers v. Hardwick (1986) only 17 years after that case was decided; Heller was decided 13 years ago.  And one might well ask what weight stare decisis should be given when the most directly relevant precedent, McDonald, is explicitly derived from a case, Heller, that features an opinion that is self-contradictory on its very face.  

In an ideal world, a Supreme Court review of Young would result in overruling both Heller and McDonald, but, last time I looked, we weren't living in an ideal world.  The best outcome one could realistically hope for is that, rather than compounding its previous grievous errors, the Court would affirm the Ninth Circuit's decision and leave it at that.

James Pfander & Elena Joffroy: Slavery and State Equality Over Time
Michael Ramsey

James E. Pfander (Northwestern University School of Law) and Elena Joffroy (J.D., Northwestern '20) have posted Equal Footing and the States "Now Existing": Slavery and State Equality Over Time (Fordham Law Review, forthcoming) (29 pages) on SSRN.  Here is the abstract:

This Essay, a contribution to Fordham’s Symposium on the Federalist Constitution, reexamines the question whether the Constitution empowered Congress to ban slavery in the territories. We explore that question by tracking two proposed additions to the Constitution, one that would empower Congress to ban the migration and importation of enslaved persons to all new states and territories and one that would oblige Congress to admit new states on an equal footing with the old. We show that the Federalists supported and the Convention adopted the migration provision, enabling Congress to restrict slavery to the states “now existing.” But the Federalists opposed and the Convention rejected the equal footing doctrine.

Over time, things changed. In debates over the admission of Missouri to the Union as a slave state, Southerners offered a popular, if implausible, reinterpretation of the Now Existing Caveat to the Migration and Importation Provision that rendered it practically irrelevant to the expansion of slavery. What is more, Southerners pressed to extend a judge-made equal footing doctrine, urging that new states were entitled to legalize the ownership of people just as the old states were. Chief Justice Roger Taney wrote the Southern interpretation into the Constitution in the Dred Scott v. Sandford opinion, ignoring the Now Existing Caveat and embracing the equal footing doctrine as a matter of constitutional compulsion. While Dred Scott has not survived, the equal footing doctrine now undergirds the idea of equal state sovereignty in such U.S. Supreme Court decisions as Shelby County v. Holder. Meanwhile, the Federalist constitutional settlement has all but disappeared from view.

04/01/2021

The State of Originalism 2021
Mike Rappaport

The Center for the Study of Constitutional Originalism at the University of San Diego has been holding an annual conference on originalism for the last 12 years. Each year at the beginning of the conference, I discuss what I regard as the most important events concerning originalism in the past year. Last year, on this page, I noted that for the first time in many years, the most significant event had not involved a Supreme Court vacancy or appointment, such as Justice Scalia’s passing, Justice Gorsuch’s nomination and appointment, or Justice Kavanaugh’s appointment.

This past year, however, the importance of Supreme Court appointments returned with a vengeance. The most important event for originalism was the appointment of Amy Coney Barrett to Justice Ginsburg’s seat. This event is important not merely because it replaces a progressive with a conservative, but because it replaces a strong non-originalist with a strong originalist, which significantly moves the Court towards originalism.

Justice Barrett appears likely to be a strong originalist—one whose commitment to originalism is of primary importance to her voting and reasoning. One bit of evidence for her originalist bona fides—as well as something of importance in its own right—is that, more than any other Justice in the modern era, Barrett was clearly associated with originalism prior to her appointment. Some nominees had some minor association (such as Justice Gorsuch), others not much at all (such as Justice Kavanaugh). But Barrett had a long paper trail forthrightly indicating she was an originalist.

As a result of this appointment, there are now four avowed originalists on the Court —Thomas, Gorsuch, Kavanaugh and Barrett. That means there are now more originalists on the Court than there are progressive non-originalists. Let’s repeat that: more originalists than progressive non-originalists! That is simply amazing. When I graduated from law school back in the 1980s, not a single originalist sat on the Court. Some might regard this situation as heaven and some might regard it as hell, but when considered from the perspective of the 1980s, it hardly seems like the real world.     

Originalists are now the largest voting group on the Court. The largest voting group, whatever it is, is likely to have an outsized effect. The influence of this group becomes even stronger since it will often be joined with fellow travelers like Justice Alito, and perhaps Chief Justice Roberts.

The Barrett appointment is also important because it is likely to take power away from Chief Justice Roberts. While Roberts is a marvelous craftsman and can sometimes write originalist opinions, he does not in the main seem to be an originalist. Before Barrett was appointed, for a brief period Roberts had tremendous power as both the Chief Justice and the median justice. But no longer. With Barrett on the Court, Justice Kavanaugh, an originalist, is likely to become the median Justice.   

Yet, I say this with caution because Justice Kavanaugh’s originalism is by no means proven. Before his confirmation hearings, Kavanaugh did not describe himself as an originalist. And while he calls himself an originalist now, he votes most often with Chief Justice Roberts, and second most often with Justice Alito—neither of whom I would describe as an originalist. If Kavanaugh is more like Roberts and less of an originalist than advertised, that changes things. Then there are three groups—three progressive non-originalists, three originalists, and another group of largely conservative non-originalists. It wouldn’t be terrible for originalists, but they would be less influential.

In addition to Barrett’s appointment, the past year has seen some very important cases decided. I want to draw attention to three of them because they show how originalism sometimes functions differently than we expect or hope.   

First, there was the Chiafalo or “faithless electors” case—a case that I regard as a disaster for originalism. In my view, in that case Professor Larry Lessig provided the original meaning to the Court on a silver platter—that the states could not control how the presidential electors voted. But in an opinion written by Justice Kagan and joined by seven Justices, that purported to follow an originalist analysis, the Court held that the states could control the electors. Significantly, in my view, not a single justice got the original meaning right —not even Justice Gorsuch in his concurrence. Chiafalo shows that avowing originalism does not guarantee quality originalist adjudication.

Second, another originalist mistake occurred in Bostock v. Clayton County, which held that Title VII’s prohibition on sex discrimination covered sexual orientation and transgender status discrimination. Here the Court claims to be seeking “the ordinary public meaning of [the statute’s] terms at the time of its enactment.” But rather than pursuing a genuine originalism, the Court followed either a form of literalism or nonoriginalist legal analysis to arrive at a result that conflicted with the original public meaning. But unlike Chiafalo, at least the Bostock majority “originalist” opinion was only endorsed by one originalist—Justice Gorsuch—while the other originalists dissented. Bostock shows that originalists will often disagree among themselves about their methodology.

So, we have an originalist Court, in cases that purport to be decided on originalist grounds, getting the original meaning wrong. And in both of these cases it is probably no accident that the majority reached results that are regarded by many as desirable according to contemporary sensibilities. Still, I suppose this is progress of a kind, since the Court at least purports to rely on originalism.

The case of Seila Law sounded a happier note for originalists. In that case the Court held that the Director of the Consumer Financial Protection Bureau could not be made removable for cause. The Court did not overrule Humphrey’s Executor’s holding that commissions could be made independent of presidential control, but instead construed the case narrowly in light of the original meaning. Seila Law illustrates how originalism can have an important influence, without overruling non-originalist precedent.   

The final originalist event I will discuss returns us to the Barrett confirmation. The hearings were a politically polarized affair, and sadly originalism became caught up in the controversy. The most troubling part involved a speech given by Senator Ed Markey. In an address that had many unfortunate things to say, the worst was his slanderous claim that: “Originalism is racist. Originalism is sexist. Originalism is homophobic.”

My reaction to his statement is two-fold. On the one hand, in a world where so many things are unfairly criticized as racist, sexist, and homophobic, why should originalism – which has become so important—be exempt? The charge is unfair and unfortunate, but in a weird way it shows the importance of originalism.

On the other hand, the effects of this statement cannot be dismissed with such nonchalance. This type of statement from a prominent Democratic politician suggests that originalism is both partisan and indefensible. And it makes it harder for originalism to gain acceptance not merely from Republicans but also from Democrats.

If originalism is to fully succeed, it must become the interpretive methodology of both parties. If one looks at interpretive approaches that were dominant at different periods in history, including non-originalism during the middle of the 20th Century, there was not a single version of these jurisprudences. Instead, there would be at least two approaches that appealed to different parts of the political spectrum.

If we are to see an originalist Court, it will need originalists appointed by Democratic Presidents. Realistically, that will involve a different type of originalism than mine—perhaps one that looks more like the originalism of Jack Balkin and the Constitutional Accountability Center—but an originalism nonetheless. Calling originalism racist, sexist and homophobic makes it harder for progressives to be originalists.    

In the past year, originalism has shown the signs of a vibrant and growing movement.  We have witnessed the appointment of a strong originalist Justice and the emergence of a plurality of originalist Justices.  Originalism’s success, however, has also led to some less happy events, such as unfair senatorial attacks and mistaken originalist decisions.  Overall, then, the year was a mixed one, but one that showed great promise for the future. 

Colorblindness and Affirmative Action: A Response to Eric Segal
Andrew Hyman

On March 22, Professor Eric Segal posted The Racist Roots of Originalism at Dorf on Law, critiquing a related article by Calvin TerBeek.  This is a response to Professor Segal, who writes:

[T]oday's originalists generally believe that affirmative action is unconstitutional, that voting suppression tactics such as Voter ID laws are constitutional, that Congress' power to enforce the 14th and 15th Amendments should be quite narrow, and that after centuries of slavery and segregation we should just start over with a non-textual, rigid, color-blindness rule.
 
If, as Professor Segal says, some purported originalists favor a “non-textual…rule” then they are not real textualist originalists in the first place.  Originalism is simply the idea that judges have no legitimate power to replace the likely intended meanings of words in a legal text with their own preferred meanings, and thus effectively legislate from the bench.  For example, the U.S. president’s term of office is four years, and an originalist textualist would say that judges are not entitled to interpret the word “year” to mean Martian years instead of Earth years (there are 687 Earth days in a Martian year).  By this standard, I would venture to guess that Professor Segal is himself a textualist originalist.  It’s true that some misguided people have embraced and twisted originalism because of their racism, but many other people have embraced originalism for reasons having nothing to do with race, and statutory originalism has been going on a lot longer than the United States has existed.  History is also full of racists who took a liking to living constitutionalism, as this quote from Woodrow Wilson shows:
 
Society is a living organism and must obey the laws of life, not of mechanics; it must develop. All that progressives ask or desire is permission - in an era when "development," "evolution," is the scientific word - to interpret the Constitution according to the Darwinian principle; all they ask is recognition of the fact that a nation is a living thing and not a machine.
 
According to the Merriam-Webster Dictionary, originalism is “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.”  It’s quite a leap to say that originalism is a "racist" legal philosophy.  I doubt that Professor Segal really believes we should start to interpret legal documents according to what we wish they would say.  It has become fashionable these days to throw around terms like “racist” and “fascist” with abandon, against one’s political opponents, and against policies that are not inherently racist at all such as voter ID laws.  Whether that name-calling continues or not, let’s at least acknowledge that the victors in the U.S. Civil War had a virtually free hand to amend the Constitution to their liking; they did so, but they did not write a bunch of gibberish so the judiciary could interpret it however the judges might want. 
 
With regard to affirmative action, most self-styled originalists believe that it is constitutional insofar as it is undertaken by the private sector with no discrimination or involvement by government.  Moreover, since the Equal Protection Clause of the Fourteenth Amendment is solely a limitation upon action by the state governments and not the federal government, many (perhaps most) originalists believe that the Fourteenth Amendment leaves it up to the good judgment of Congress to decide whether or not the federal government pursues a policy of affirmative action or instead color-blindness.  My own policy preference (as opposed to my understanding of the Constitution) is that all governments should strive mightily to ensure equal opportunity instead of race-based affirmative action, because judging people by the color of their skin rather than their merit is noxious and destructive, and also likely to affect people whose ancestors had no part in slavery or segregation; anyway, whatever good could come from affirmative action could probably instead be achieved in a race-neutral manner (e.g. by increasing inheritance taxes, and/or ensuring that schools make equal opportunity a practical reality). 
 
The question whether state governments may constitutionally engage in affirmative action, or instead must be color-blind, depends upon how the Equal Protection Clause is interpreted.  Personally, I believe the Equal Protection Clause’s original meaning has been misinterpreted to some extent, and does not forbid affirmative action by state governments, unless Congress and the Supreme Court jointly block it.  See my article titled The Substantive Role of Congress Under the Equal Protection Clause.

03/31/2021

Joseph Scott Miller: A Citation-Network Approach to Mapping Judicial Ideology
Michael Ramsey

Joseph Scott Miller (University of Georgia School of Law) has posted “Justice X, dissenting”: A Citation-Network Approach to Mapping Judicial Ideology (54 pages) on SSRN.  Here is the abstract:

Appellate judges prefer some outcomes over others. We can tell because we see them disagree with one another regularly, both within a given a case and across a run of cases. Scholars, both in political science and law, have used various techniques to quantify judges’ policy preferences and chart those preferences, both across judge and through time. The Martin-Quinn score is a prominent example. But appellate judges don’t simply vote. They also write, justifying their judgments. When writing for a majority, the authoring judge must accommodate her partners in the majority, dropping or adding text (including citations) to keep the majority together. When writing a dissent or concurrence, by contrast, the judge can write simply to explain, without accommodation, how she views the issues in the case. Indeed, given that dissenting or concurring triggers varied costs, the chance to justify one’s analysis without compromise is perhaps the main benefit to writing a dissent or concurrence at all. Can we map an appellate judge’s ideological preferences in a way that harnesses the information these separate opinions provide? Citation network analysis is a promising way to do so. In this project, I gather the citation data (to earlier Supreme Court opinions) from all of Justice Scalia’s and Justice Thomas’s dissenting and concurring opinions on the Supreme Court, through the end of the October 2019 Term in July 2020, and then measure and map the resulting citation and co-citation networks, across all opinions and parsing concurrences from dissents. Justices Scalia and Thomas are an especially apt pair of justices to study in this way for three reasons: (a) as of 2020 they served for a similar period of years; (b) they have both dissented and concurred at similarly high rates, generating rich citation networks; and (c) they were each one another’s closest ideological fellow-traveler using scores like M-Q , making any differences between them revealed by citation-network analysis that much more informative. In summary: Justice Scalia sought mainly to reshape judicial power. Justice Thomas, by contrast, has sought mainly to reshape legislative power, including by enhancing state legislative power.

03/30/2021

Originalism in Torres v. Madrid
Michael Ramsey

Last week the Supreme Court decided Torres v. Madrid, which asked whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment.  (Answer: yes, 5-3 per Chief Justice Roberts).

Earlier I suggested that this case was a candidate for a liberal-originalist alliance, based on Justice Scalia's dicta in California v. Hodari D., 499 U.S. 621 (1991) (observing that “application of physical force to restrain movement” is a seizure under the Fourth Amendment “even when it is ultimately unsuccessful”) and the petitioners' strong assertions of originalist support.  And indeed, the Chief Justice, for himself and Justices Breyer, Sotomayor, Kagan and Kavanaugh, relies heavily on Hodari D. and the founding-era common law rule.

But Justice Gorsuch (writing for himself and Justices Thomas and Alito) dissents.  From his introduction: 

The majority holds that a criminal suspect can be simultaneously seized and roaming at large. On the majority’s account, a Fourth Amendment “seizure” takes place whenever an officer “merely touches” a suspect. It’s a seizure even if the suspect refuses to stop, evades capture, and rides off into the sunset never to be seen again. That view is as mistaken as it is novel.

Until today, a Fourth Amendment “seizure” has required taking possession of someone or something. To reach its contrary judgment, the majority must conflate a seizure with its attempt and confuse an arrest with a battery. In the process, too, the majority must disregard the Constitution’s original and ordinary meaning, dispense with our conventional interpretive rules, and bypass the main currents of the common law. Unable to rely on any of these traditional sources of authority, the majority is left to lean on (really, repurpose) an abusive and long-abandoned English debt-collection practice. But there is a reason why, in two centuries filled with litigation over the Fourth Amendment’s meaning, this Court has never before adopted the majority’s definition of a “seizure.” Neither the Constitution nor common sense can sustain it.

He makes some powerful points, leading (among other things) to a conclusion that Scalia's observation in Hodari D. was ill-considered.  Although I was initially inclined to think originalism favored the petitioners, on reflection the dissent seems more persuasive.  (But it seems odd that the Constitution would not limit an officer's authority to shoot a suspect as long as the suspect escaped).

03/29/2021

"Originalism: Standard and Procedure" by Stephen Sachs
Michael Ramsey

Stephen E. Sachs (Duke University School of Law) has posted Originalism: Standard and Procedure (Harvard Law Review, forthcoming) (60 pages) on SSRN.  Here is the abstract:

Originalism is often promoted as a better way of getting constitutional answers. That claim leads to disappointment when the answers prove hard to find. To borrow a distinction from philosophy, originalism is better understood as a *standard*, not a *decision procedure*. It offers an account of what makes right constitutional answers right. What it doesn’t offer, and shouldn’t be blamed for failing to offer, is a step-by-step procedure for finding them.

Distinguishing standards from decision procedures explains how originalists can tolerate substantial uncertainty about history or its application; justifies the creation of certain kinds of judicial doctrines (though not others); clarifies longstanding battles over interpretation and construction; identifies both limits and strengths for the theory’s normative defenders; and gives us a better picture of originalism’s use in practice.

It would be very nice if the correct constitutional theory gave us easy answers in contested cases. But you can’t have everything. Knowing the right standard might not lead us to those answers, but it still might be worth knowing all the same.

I read an earlier draft.  This is a great paper, and a pleasure to read.

03/28/2021

David Schwartz & John Mikhail: The Other Madison Problem
Michael Ramsey

David S. Schwartz (University of Wisconsin Law School) and John Mikhail (Georgetown University Law Center) have posted The Other Madison Problem (89 Fordham Law Review (forthcoming Spring 2021)) (52 pages) on SSRN.  Here is the abstract:

The conventional view of legal scholars and historians is that James Madison was the “father” or “major architect” of the Constitution, whose unrivaled authority entitles his interpretations of the Constitution to special weight and consideration. This view greatly exaggerates Madison’s contribution to the framing of the Constitution and the quality of his insight into the main problem of federalism that the Framers tried to solve. Perhaps most significantly, it obstructs our view of alternative interpretations of the original Constitution with which Madison disagreed.

Examining Madison’s writings and speeches between the spring and fall of 1787, we argue, first, that Madison’s reputation as the father of Constitution is unwarranted. Madison’s supposedly unparalleled preparation for the Constitutional Convention and his purported authorship of the Virginia plan are unsupported by the historical record. Moreover, the ideas Madison expressed in his surprisingly limited pre-Convention writings were either widely shared or, where more peculiar to him, rejected by the Convention. Second, we argue that Madison’s recorded thought in this critical 1787 period fails to establish him as a particularly keen or authoritative interpreter of the Constitution. Focused myopically on the supposed imperative of blocking bad state laws, Madison failed to diagnose the central problem of federalism that was clear to many of his peers: the need to empower the national government to regulate the people directly. Whereas Madison clung to the idea of a national government controlling the states through a national legislative veto, the Convention settled on a decidedly non-Madisonian approach of bypassing the states by directly regulating the people and controlling bad state laws indirectly through the combination of federal supremacy and preemption. We conclude by suggesting that scholars pursue a fresh and more accurate assessment of Madison and his constitutional legacy, particularly with respect to slavery.

Agreed.  Madison is overrated as an authoritative interpreter.  I'm not sure, though, that I agree that the conventional view among legal scholars (at least, among originalists) is to the contrary.

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

03/27/2021

Originalism and International Shoe in the Supreme Court's Ford Motor Decision
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: Waiting for the Other International Shoe to Drop.  From the introduction:

The vote in Ford Motor Co. v. Montana Eighth Judicial Dist. [decided by the Supreme Court earlier this week] was 5-3. Justice Kagan wrote the majority opinion, which was joined by the Chief Justice, and Justices Breyer, Sotomayor, and Kavanaugh. (Justice Barrett did not participate.) Justice Alito concurred in the judgment. He suggested that the majority opinion put a new "gloss" on personal jurisdiction caselaw. Justice Gorsuch wrote a separate concurrence, which was joined by Justice Thomas. Justice Gorsuch wrote a very Gorsuch opinion: he cast doubt on International Shoe Co. v. Washington (1945). Yes, the canonical case that every 1L struggles with.

Justice Gorsuch begins his analysis with a throwback to Pennoyer v. Neff (1878).

Before International Shoe, it seems due process was usually understood to guarantee that only a court of competent jurisdiction could deprive a defendant of his life, liberty, or property. In turn, a court's competency normally depended on the defendant's presence in, or consent to, the sovereign's jurisdiction. But once a plaintiff was able to "tag" the defendant with process in the jurisdiction, that State's courts were generally thought competent to render judgment on any claim against the defendant, whether it involved events inside or outside the State.  Pennoyer  v.  Neff, 95 U. S. 714, 733 (1878).

Specifically on International Shoe, Gorsuch writes: 

In many ways, International Shoe sought to start over. The Court “cast . . . aside” the old concepts of territorial jurisdiction that its own earlier decisions had seemingly twisted in favor of out-of-state corporations.  At the same time, the Court also cast doubt on the idea, once pursued by many state courts, that a company “consents” to suit when it is forced to incorporate or designate an agent for receipt of process in a jurisdiction
other than its home State. In place of nearly everything that had come before, the Court sought to build a new
test focused on “traditional notions of fair play and substantial justice.”

It was a heady promise. But it is unclear how far it has really taken us. Even today, this Court usually considers
corporations “at home” and thus subject to general jurisdiction in only one or two States. All in a world where global
conglomerates boast of their many “headquarters.” The Court has issued these restrictive rulings, too, even though
individual defendants remain subject to the old “tag” rule, allowing them to be sued on any claim anywhere they can
be found.  Nearly 80 years removed from International Shoe, it seems corporations continue to receive special jurisdictional protections in the name of the Constitution. Less clear is why.

Ultimately Justice Gorsuch doesn't reach any conclusions but calls for further study:

The parties have not pointed to anything in the Constitution's original meaning or its history that might allow Ford to evade answering the plaintiffs' claims in Montana or Minnesota courts. . . .The real struggle here isn't with settling on the right outcome in these cases, but with making sense of our personal jurisdiction jurisprudence and International Shoe's increasingly doubtful dichotomy. On those scores, I readily admit that I finish these cases with even more questions than I had at the start. Hopefully, future litigants and lower courts will help us face these tangles and sort out a responsible way to address the challenges posed by our changing economy in light of the Constitution's text and the lessons of history.

I'm sympathetic to Gorsuch's doubts.  In connection with the Daimler AG v. Bauman case a while back (also raising the question of personal jurisdiction over an out-of-state corporation), I wrote

... If California [the forum state] says to Daimler [a foreign corporation] "You can only do business here if you agree to be sued for wrongs you commit anywhere," why does that violate due process?  Daimler can choose to do business in California or not, but it doesn't have a right to do business in California.  And the fact that Daimler did its California business through a subsidiary doesn't seem to change the analysis; equally, it seems, California can say that a foreign corporation can't use subsidiaries to evade jurisdiction, and again Daimler can just stay out of California if it doesn't like that rule.  I see nothing unfair about putting Daimler to that choice, and in any event I see no procedural injury.

Perhaps there is some historical account of due process suggesting that violations could arise from unreasonable conditions on doing business, but I don't think anything like that has been demonstrated.  ...

What this case really suggests, though, is the need for more originalist-oriented scholarship on the civil procedure aspects of the due process clause.  Everyone wants to write about the clause's substantive aspects, or its criminal procedure aspects, or its constraint on executive power.  What about its constraint on courts?  The area seems, at best, poorly understood.  Even for those who are not fully-blown originalists, it would seem helpful for courts and litigants to have some anchor in the text's original meaning.

03/26/2021

Ninth Circuit Second Amendment Open Carry Decision in Young v. Hawaii
Michael Ramsey

In Wednesday's decision in Young v. Hawaii, an en banc panel of the Ninth Circuit held (7-4) that the Second Amendment doesn't protect a right to openly carry arms in public.  The court earlier had held that there is no right to carry concealed arms in public.  (More from Jacob Sullum at Reason here.)

Both the majority and dissent are strongly originalist in orientation.  Judge Bybee's majority summarizes: 

After careful review of the history of early English and American regulation of carrying arms openly in the public square, we conclude that Hawai‘i’s restrictions on the open carrying of firearms reflect longstanding prohibitions and that the conduct they regulate is therefore outside the historical scope of the Second Amendment. Accordingly, Hawai‘i’s firearms-carry scheme is lawful.

And from further on:

We begin with a review of the historical record, starting with the English tradition, and then review the Colonial era and the post-Second Amendment era. Our focus on the American sources will be on state laws and cases. As the Court explained in Heller, “[f]or most of our history, the Bill of Rights was not thought applicable to the States, and the Federal Government did not significantly regulate the possession of firearms by law-abiding citizens.” 554 U.S. at 625. As we review these records, we are well aware that we are jurists and not historians. That creates the risk that we are engaged in Professor Kelly’s “law office history.” That is not only a risk we must assume; after Heller, it is our duty to confront such history. In an effort to get the history right, we have also honored the history of common law advocacy: We have looked to the parties to shape the arguments and call to the court’s attention the appropriate precedents. We have also relied on the parties and amici to direct our focus to the principal historical sources and any important secondary sources they would like us to consider. We have tried to be as complete as possible in recounting this history, but this is a legal opinion, not a dissertation, so we are likely to fall short in some way.

The opinion then follows up with extensive historical discussion beginning with English practice dating to 1299.  (Eight pages later it's only up to 1377; 22 pages later it gets to the Constitution [which it unfortunately says "was ratified in 1789" rather than 1788]).  Thereafter it focuses mainly on state statutes and cases in the post-ratification period.  In all, the historical discussion covers 52 pages.  In conclusion (on the main point):

Our review of more than 700 years of English and American legal history reveals a strong theme: government has the power to regulate arms in the public square. History is messy and, as we anticipated, the record is not uniform, but the overwhelming evidence from the states’ constitutions and statutes, the cases, and the commentaries confirms that we have never assumed that individuals have an unfettered right to carry weapons in public spaces. Indeed, we can find no general right to carry arms into the public square for self defense. See Kachalsky, 701 F.3d at 96 (“[O]ur tradition . . . clearly indicates a substantial role for state regulation of the carrying of firearms in public.”). To be sure, any one sentence declaration that we might make will be subject to qualifications and exceptions (which we will address in the next section), but in the main, we have long distinguished between an individual’s right of defense of his household and his business and his right to carry a weapon in public for his own defense, absent exceptional circumstances. “Like . . . the right secured by the Second Amendment,” the government’s right to regulate the carriage of weapons in public places “is not unlimited.” Heller, 554 U.S. at 626. But we are persuaded that government regulations on open carry are “[l]aws restricting conduct that can be traced back to the founding era and are historically understood to fall outside of the Second Amendment’s scope,” and thus “may be upheld without further analysis.” Silvester, 843 F.3d at 821. 

The contours of the government’s power to regulate arms in the public square is at least this: the government may regulate, and even prohibit, in public places—including government buildings, churches, schools, and markets—the open carrying of small arms capable of being concealed, whether they are carried concealed or openly. We need go no further than this, because the Hawai‘i firearms licensing scheme Young challenges only applies to “a pistol or revolver and ammunition therefor.” HRS § 134-9(a). This power to regulate is fully consonant with the Second Amendment right recognized in Heller. Heller found that the pre-existing right to keep and bear arms is not a right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose.” 554 U.S. at 626. “‘[T]he central component’ of the Second Amendment” is the “basic right” of self-defense, whose exercise is “‘most acute’ in the home.” McDonald, 561 U.S. at 767 (quoting Heller, 554 U.S. at 599, 628). The heart of the Second Amendment is “defense of hearth and
home.” Heller, 554 U.S. at 635. 

Judge O'Scannlain's dissent (joined by Judges Callahan, Ikuta, and R. Nelson) begins:

The Second Amendment to the United States Constitution guarantees “the right of the people to keep and bear Arms.” U.S. Const. amend. II (emphasis added). Today, a majority of our court has decided that the Second Amendment does not mean what it says. Instead, the majority holds that while the Second Amendment may guarantee the right to keep a firearm for self-defense within one’s home, it provides no right whatsoever to bear—i.e., to carry—that same firearm for self defense in any other place.

This holding is as unprecedented as it is extreme. While our sister circuits have grappled with—and disagreed over—the question of whether public firearms carry falls within the inner “core” of the Second Amendment, we now become the first and only court of appeals to hold that public carry falls entirely outside the scope of the Amendment’s protections.

In so holding, the majority reduces the right to “bear Arms” to a mere inkblot. The majority’s decision undermines not only the Constitution’s text, but also half a millennium of Anglo-American legal history, the Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), and the foundational principles of American popular sovereignty itself.

In contrast to the majority, the dissent focuses heavily on the Constitution's text and its eighteenth-century meaning, and roughly contemporaneous commentaries.

Methodologically, I'm inclined to prefer the dissent (unsurprisingly, per my discussion of originalist/textualist methodology here).  it seems right to start with the text, consider the immediate linguistic and political context, and only then expand the inquiry into times that are more historically remote.  Beginning in 1299 tends to privilege the outlook of the thirteenth and fourteenth centuries, which seems like the wrong way to do it.  Perhaps Judge Bybee was so concerned about being accused of law office history (as his opening discussion suggests) that he overdid it in the opposite direction.  In any event, it seems to me that the English practice of the eighteenth century is substantially more relevant.

On to the Supreme Court?

(Via USD law grad Alan Beck, who argued the case for the claimant.)

UPDATE/SOMEWHAT RELATED: In Jones v. Becerra, a pending case challenging a California law restricting sales to minors, the Ninth Circuit entered this order:

Appellants and Appellees are ordered to file supplemental briefing addressing the original public meaning of the Second Amendment. In the briefs, the parties are instructed to specifically address the following:

1. What is the original public meaning of the Second Amendment phrases: “A well regulated Militia”; “the right of the people”; and “shall not be infringed”?
2. How does the tool of corpus linguistics help inform the determination of the original public meaning of those Second Amendment phrases? (See Corpus of Historical American English, BYU, https://www.englishcorpora.org/coha/; Corpus of Contemporary American English, BYU, https://www.english-corpora.org/coca/)
3. How do the data yielded from corpus linguistics assist in the interpretation of the constitutionality of age-based restrictions under the Second Amendment

(Thanks to Neal Goldfarb for the pointer.)

03/25/2021

Supreme Court Argument in Caniglia v. Strom
Michael Ramsey

On Wednesday the Supreme Court heard oral arguments in Caniglia v. Strom, a case I flagged earlier as one of possible originalist interest.  At U.S. Today, David Gans (Constitutional Accountability Center) discusses the case here: In wake of Floyd, Taylor killings, should police have power to enter your home without a warrant?  An excerpt:

"When it comes to the Fourth Amendment, the home is first among equals,” as Justice Antonin Scalia put it in a 2013 ruling. If police can enter a person’s home without any suspicion of criminal wrongdoing simply because they claim to be taking care of the community, the Fourth Amendment would be close to a dead letter. Our right to be secure would exist only at the whim of the police. 

The police officers who broke into the home of Edward Caniglia are urging the court, with the rather surprising support of the Biden administration, to bless a massive expansion in the power of police to enter the home. They claim that police officers may invade the home to protect the purported safety of the community if the police acted “reasonably.” ...

Embracing such an open-ended formula would grant police officers the unbridled discretion the Fourth Amendment was designed to prevent. The Fourth Amendment promised to end indiscriminate searches and seizures of the home. Caniglia tests whether the justices are willing to enforce the central idea at the heart of the Fourth Amendment: the need for strict limits on excessive police discretion. 

Yes, and as I commented earlier, I bet there's no originalist support for this doubtful exception.

The courts have a sorry history of (a) saying the Fourth Amendment doesn't apply as strictly to cars because, well, cars are different somehow (never mind that there were personal vehicles at the time of enactment, albeit without engines, and cars are obviously "effects" protected by the Amendment), and then (b) letting whatever exception is made up for cars extend to other situations in ways that obviously wouldn't have been accepted in the founding era.  Fortunately the Supreme Court has been cutting back on this practice, and Caniglia may be an opportunity to make some more progress in that direction.

Plus a great opportunity for an originalist-liberal alliance.

03/24/2021

Holden Tanner: Constitutional Norms in Originalist Adjudication
Michael Ramsey

Holden Tanner (Yale Law School, J.D. Candidate, Class of 2021) has posted Constitutional Norms in Originalist Adjudication (35 pages) on SSRN.  Here is the abstract:

Our legal system thrives on norms. Informal norms about the proper way to wield constitutionally conferred discretion are often the sole source of guidance for government actors in areas where the courts lack control. But norms also show up in areas that involve judicial interpretation. When a norm is brought to the attention of a court, the temptation of originalist and textualist jurists will be obvious: ignore it, and just focus on the text. This paper offers a dissenting view. Norms are valuable arguments in originalist adjudication, and nothing in the standard account of originalist jurisprudence requires courts to ignore them. Instead, a renewed focus on norms will sharpen originalist sensitivity to key ideas of adjudication, such as workability analysis in the stare decisis context and the role of prudential choices in constitutional construction. Norms may even offer a way past the logjam in public meaning originalism, freeing up jurists to focus on case-by-case normative choices rather than subscribing to a single controlling norm when deciding between permissible interpretations. Originalism helps us think about what role norms play in constitutional decision-making, and norms help us understand the forms and limits of originalist jurisprudence. Rather than ignore them, originalists should embrace them.

03/23/2021

Calvin TerBeek on Originalism after Brown v. Board of Education [Updated]
Michael Ramsey

In the American Political Science Review, Calvin TerBeek (Chicago): “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial Origins of Constitutional Originalism.  Here is the abstract:

The Republican Party has adopted constitutional “originalism” as its touchstone. Existing accounts of this development tell either a teleological story, with legal academics as the progenitors, or deracialized accounts of conservatives arguing first principles. Exploiting untapped archival data, this paper argues otherwise. Empirically, the paper shows that the realigning GOP’s originalism grew directly out of political resistance to Brown v. Board of Education by conservative governing elites, intellectuals, and activists in the 1950s and 1960s. Building on this updated empirical understanding, the theoretical claim is that ideologically charged elite legal academics and attorneys in Departments of Justice serve more of a legitimating rather than an originating role for American constitutional politics upon a long coalition’s electoral success. Finally, by showing the importance of race to constitutional conservatism’s development, this article posits that the received understanding of a “three-corner stool” of social, economic, and foreign policy conservatism needs revision.

And from the conclusion:

This article argues that the modern GOP’s constitutional “originalism” grew directly out of resistance to Brown. Once elite academic lawyers legitimized originalism as a potential jurisprudential theory, party-in-government elites such as Attorney General Meese could claim it, and Bork’s article (saving Brown via an invented “juridical rule”), as setting forth an apolitical search for correct constitutional answers. More than that, as this constitutional ideology developed in the post-Reagan years with the sustained help of the Federalist Society and affiliated legal academics, conservatives rewrote their own history. This mythology not only had (and has) the virtue of providing a professional claim for conservative legal elites—these were (and are) academic arguments with the demand to be treated as such (Teles 2008)—they also provided the benefit of being able to erase the uncomfortable racial origins of modern originalism. The empirical purpose of this article has been to recover those origins.

Theoretically, one case study has limited reach. The theory is likely time bound. Built into it is an assumption of the clear distinction and division of labor between legal and political elites, an expectation that may not apply to the nineteenth century’s “state of courts and parties” (Skowronek 1982). The clearest comparison is to ask whether the Progressives-cum-New Dealers’ “living constitutionalism” follows the same historical pattern or if there are critical differences. An empirical extension of the theory, too, might examine how constitutional ideologies redevelop and expand (or contract) upon institutionalization in the Department of Justice and the courts. Finally, it may be time to retire the deracialized “three-corner” stool accounts of postwar (constitutional) conservatism’s development. It is not that race is all important, but it is to say that race is as important.

UPDATE:  Eric Segall comments here, at Dorf on Law.

03/22/2021

New Book: Jamal Greene's "How Rights Went Wrong"
Michael Ramsey

Recently published, by Jamal Greene (Columbia): How Rights Went Wrong: Why Our Obsession with Rights Is Tearing America Apart (Houghton Mifflin Harcourt 2021).  Here is the book description from Amazon:

“Essential and fresh and vital . . . It is the argument of this important book that until Americans can reimagine rights, there is no path forward, and there is, especially, no way to get race right. No peace, no justice.”—from the foreword by Jill Lepore, New York Times best-selling author of These Truths: A History of the United States

An eminent constitutional scholar reveals how our approach to rights is dividing America, and shows how we can build a better system of justice.


You have the right to remain silent—and the right to free speech. The right to worship, and to doubt. The right to be free from discrimination, and to hate. The right to life, and the right to own a gun.
 
Rights are a sacred part of American identity. Yet they also are the source of some of our greatest divisions. We believe that holding a right means getting a judge to let us do whatever the right protects. And judges, for their part, seem unable to imagine two rights coexisting—reducing the law to winners and losers. The resulting system of legal absolutism distorts our law, debases our politics, and exacerbates our differences rather than helping to bridge them.
 
As renowned legal scholar Jamal Greene argues, we need a different approach—and in How Rights Went Wrong, he proposes one that the Founders would have approved. They preferred to leave rights to legislatures and juries, not judges, he explains. Only because of the Founders’ original sin of racial discrimination—and subsequent missteps by the Supreme Court—did courts gain such outsized power over Americans’ rights. In this paradigm-shifting account, Greene forces readers to rethink the relationship between constitutional law and political dysfunction and shows how we can recover America’s original vision of rights, while updating them to confront the challenges of the twenty-first century.

Professor Greene presented a chapter of this book at the originalism works-in-progress conference in San Diego in February 2020.  It's great to see the whole project in print.

03/21/2021

Ronald Krotoszynski & Atticus DeProspo: Advice and Consent, Faithful Execution, and the Vacancies Reform Act
Michael Ramsey

Ronald J. Krotoszynski Jr. (University of Alabama - School of Law) & Atticus DeProspo (Law Clerk to the Hon. Peter W. Hall, U.S. Court of Appeals for the Second Circuit) have posted Squaring a Circle: Advice and Consent, Faithful Execution, and the Vacancies Reform Act (55 Georgia Law Review 731 (2021)) (85 pages) on SSRN.  Here is the abstract:

Successive presidents have interpreted the Federal Vacancies Reform Act of 1998 to authorize the appointment of principal officers on a temporary basis. Despite serving in a mere “acting” capacity and without the Senate’s approval, these acting principal officers nevertheless wield the full powers of the office. The best argument in favor of this constitutionally dubious practice is that an acting principal officer is not really a “principal officer” under the U.S. Constitution because she only serves for a limited period. Although not facially specious, this claim elides the most important legal fact: an acting principal officer may exercise the full powers of the office, just like a Senate-confirmed cabinet officer. This approach broadly vindicates Article II’s Take Care Clause, which requires that the President have the assistance needed to ensure that “the laws be faithfully executed.” Unfortunately, this approach effectively reads the Appointments Clause out of the Constitution. For a person to hold a principal office, the Appointments Clause expressly requires that the President first seek and obtain the “advice and consent” of the Senate. Without the Senate’s approval, a person cannot constitutionally hold a principal office (i.e., head a cabinet-level department or agency).

Squaring a Circle proposes a better approach that would vindicate both the Take Care and Appointments Clauses: Federal courts should limit the scope of authority acting principal officers may exercise to the performance of essential and necessary tasks – i.e., an acting principal officer must be a caretaker in both form and substance. Federal courts should not allow acting principal officers to undertake new discretionary programmatic initiatives. Moreover, if an acting principal officer attempts to wield the full powers of the office, federal courts should nullify, as ultra vires, discretionary policymaking initiatives that are not clearly essential and necessary to the performance of core executive functions. This approach would render acting principal officers more plausibly “inferior” under the Appointments Clause, would make them subordinate to a supervisor other than the President (Article III courts), and would create a powerful incentive for the President to nominate and obtain the Senate’s approval of a principal officer who could constitutionally exercise the full powers of the office.

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

03/20/2021

Ilya Somin Interviews Charles Kessler on "The Crisis of the Two Constitutions"
Michael Ramsey

From Ilya Somin at Volokh Conspiracy

I recently interviewed prominent conservative political theorist Charles Kesler for C-SPAN Book TV, on his interesting new book The Crisis of the Two Constitutions: The Rise, Decline, and Recovery of American Greatness. The video is available here.

I tried to strike a balance between giving Kesler a chance to expound on the arguments of the book, and raising  questions about  points where I have reservations. To me, the most interesting part may be the exchange at roughly 20:00-31:00, where it becomes clear that Kesler's rationale for why we have to follow the original meaning of the Constitution is that it got unanimous consent. But he also eventually seems to concede that no such thing ever actually happened (e.g.—groups such as Loyalists and slaves either refused to consent or had no meaningful opportunity to do so). Even the members of the Constitutional Convention did not all consent to it, as three refused to sign (most notably, George Mason). My own rationale for originalism does not rely on consent theory.

...

At other points in the C-SPAN interview, I try to draw Kesler out on the extent to which he actually rejects the institutions and innovations established by advocates of what he calls the "progressive Constitution." It turns out he may accept a lot more of them than we might initially expect.

And here is the description of Professor Kessler's book from Amazon:

American politics grows embittered because it is increasingly torn between two rival constitutions, two opposed cultures, two contrary ways of life. American conservatives rally around the founders’ Constitution, as amended, and as grounded in the natural and divine rights and duties of the Declaration of Independence. American liberals herald their “living Constitution,” a term that implies the original is dead or superseded, and that the fundamental political imperative is constant change or “transformation” (as President Obama called it) toward a more and more perfect social democracy, made possible by man’s increasingly god-like control of his own moral evolution.

Crisis of the Two Constitutions details how we got to and what is at stake in our increasingly divided America. It takes controversial stands on matters political and scholarly, describing the political genius of America’s founders and their efforts to shape future generations through a constitutional culture that included immigration, citizenship, and educational policies. Then it turns to the attempted progressive refounding of America, tracing its accelerating radicalism from the New Deal to the 1960s’ New Left to today’s unhappy campus nihilists. Finally, the volume appraises American conservatives’ efforts, so far unavailing despite many famous victories, to restore the founders’ Constitution and moral common sense. From Ronald Reagan to Donald Trump, what have conservatives learned and where should we go from here?

Along the way, Charles R. Kesler, editor of the Claremont Review of Books, argues with critics on the left and right, and refutes fashionable doctrines including relativism, multiculturalism, and neoconservatism, providing in effect a one-volume guide to the increasingly influential Claremont school of conservative thought by one of its most engaged thinkers.

03/19/2021

Federalist Society National Student Convention Today and Tomorrow at Penn Law
Michael Ramsey

Here is the announcement from the Federalist Society:

Penn Law's Federalist Society Chapter 

40th Annual National Student Symposium 

March 19-20, 2021

"International Law & U.S. Foreign Policy"

Titled "International Law and US Foreign Policy," the Symposium will focus on issues such as constitutional interpretation, international governance, trade, and human rights. For the past 20 years the U.S. has found itself engaging in a variety of conflicts across the globe, confronting the rise of geopolitical rivals in both military and economic influence, and most recently combating the global impact of COVID-19. The newfound focus on U.S. foreign policy has introduced an array of complex and contentious legal and political issues.

     Confirmed Speakers

·  John B. Bellinger III, Arnold & Porter

·  Hon. Stephanos Bibas, U.S. Court of Appeals, 3rd Circuit

·  Hon. Elizabeth Branch, U.S. Court of Appeals, 11th Circuit

·  Prof. Lea Brilmayer, Yale Law School

·  Hon. Ronald Cass, Dean Emeritus, Boston University School of Law

·  Prof. Jacques deLisle, Penn Law

·  Prof. William Dodge, UC Davis School of Law

·  Prof. Claire Finkelstein, Penn Law

·  Prof. Oona Hathaway, Yale Law School

·  Hon. James C. Ho, U.S. Court of Appeals, 5th Circuit

·  Gary N. Horlick, Partner, Law Offices of Gary N. Horlick and Visiting Lecturer, Yale Law School

·  Prof. Eugene Kontorovich, George Mason University Antonin Scalia School of Law 

·  Prof. Jonathan R. Macey, Yale Law School

·  Prof. John McGinnis, Northwestern Pritzker School of Law

·  Prof. David Moore, BYU Law

·  Prof. Jide Okechuku Nzelibe, Northwestern Pritzker School of Law

·  Prof. Saikrishna Prakash, University of Virginia School of Law 

·  Prof. Michael Ramsey, University of San Diego School of Law

·  Hon. Neomi Rao, U.S. Court of Appeals, D.C. Circuit

·  Prof. Beth Simmons, Penn Law

·  Prof. Nicholas Quinn Rosenkranz, Georgetown Law 

·  Hon. Stephen Vaden, U.S. Court of International Trade

·  Prof. Ingrid Wuerth, Vanderbilt Law School

·  Prof. John Yoo, Berkeley Law

I will be speaking on Saturday, on a panel with Eugene Kontorovich, John McGinnis, and Beth Simmons (moderated by Judge Bibas) -- but on international law, not originalism.

See here for registration and the full schedule.

03/18/2021

Mark Pulliam on John Finnis on Abortion and Originalism
Michel Ramsey

At Law & Liberty, Mark Pulliam: Is Abortion Unconstitutional?  From the core of the argument:

As a matter of constitutional law, originalists such as Robert Bork, Lino Graglia, and Antonin Scalia argued (correctly, in my view) that, because the Constitution is silent on the issue of abortion, the states should be free to regulate abortion—or not—as they see fit.

But what if everyone was wrong about the premise of the debate?

What if the Reconstruction Era Fourteenth Amendment, instead of protecting a woman’s right to an abortion, protected the unborn child’s right to life? What if the 39th Congress intended to include the unborn as “persons” under the Due Process Clause? So argues Professor John Finnis of Notre Dame’s law school in a provocative article in the April 2021 issue of First Things. Finnis acknowledges that the text of the Fourteenth Amendment, drafted in 1866 and ratified in 1868, is silent on the subject of abortion, as is the drafting history and congressional debates on the measure. He nevertheless contends that the intent to protect the unborn is evident in the reliance of proponents of the Civil Rights Act of 1866 (the provisions of which the Fourteenth Amendment was designed to uphold) on William Blackstone’s Commentaries on the Laws of England (1765).

Blackstone assigned the beginning of life (and thus legal protection) to the unborn upon quickening. At least “by the dawn of the nineteenth century,” Finnis argues, abortion was prohibited under English law from the time of conception. Therefore, if the Fourteenth Amendment was intended to confer on the newly-freed slaves (and others) the rights of Englishmen (as Finnis contends, quoting James F. Wilson, the sponsor of the Civil Rights Act of 1866), the term “any person” in the Due Process Clause includes the unborn. Ergo, abortion deprives the unborn of life without due process of law, and is therefore unconstitutional. In other words, states would be constitutionally forbidden to permit abortion.

Finnis closely explores the reasoning of Roe and delves into the common law background of the concept of “quickening” in America during the 19th century. Finnis is a world class philosopher, and his philosophical arguments are compelling. But wait a minute. The article is about constitutional law, not moral philosophy.

Even if Finnis is correct about the derivation of the Fourteenth Amendment and the meaning and significance of Blackstone’s Commentaries—even if, contra Roe, unborn children are “persons” entitled to due process—does that mean, as the title of Finnis’ article suggests, that “Abortion is Unconstitutional”? Not necessarily. Section One of the Fourteenth Amendment reads, “nor shall any State deprive any person of life, liberty, or property, without due process of law.” Where is the state action?

And further:

Nor is the Equal Protection Clause a plausible basis for banning abortion under the Fourteenth Amendment. As Gerard Bradley has noted, “States enjoy considerable freedom (consistent with the Fourteenth Amendment) to specify conditions under which use of deadly force and acts which create foreseeable risks to the lives and health of others may be performed without criminal liability.” Legislative classifications are generally reviewed under the deferential rational basis test, and courts would be understandably reluctant to micromanage the myriad distinctions, variations, and omissions in states’ penal codes. Laws “discriminate” among post-natal human beings in countless respects, and there is no reason to believe that judicial scrutiny would—or should—be greater for prenatal persons.

It's notable that Professor Finnis' essay has drawn sharp criticism from conservative anti-abortion originalists (see also here from Ed Whelan).  Some critics charge that originalism provides no constraint on judging because originalists will find originalist arguments to support whatever modern policy outcome they prefer.  But the abortion debate shows the contrary.  Finnis' argument has superficial plausibility.  Originalists Pulliam and Whelan favor his outcome (prohibiting abortion) as a policy matter.  They have enormous incentives to adopt his reasoning.  But they see that his argument doesn't really work as originalism, even if it is appealing (to them) as moral philosophy.  (Scalia was the same: a strong opponent of abortion who found as an original matter that the Constitution didn't prohibit it.)  The claim that originalists don't let originalism get in the way of their preferred outcomes is simply mistaken.

03/17/2021

Kevin Arlyck: Delegation, Administration, and Improvisation
Michael Ramsey

Kevin Arlyck (Georgetown University Law Center) has posted Delegation, Administration, and Improvisation (Notre Dame Law Review, forthcoming) (67 pages) on SSRN.  Here is the abstract:

Nondelegation originalism is having its moment. Recent Supreme Court opinions suggest that a majority of justices may be prepared to impose strict constitutional limits on Congress’s power to delegate policymaking authority to the executive branch. In response, scholars have scoured the historical record for evidence affirming or refuting a more stringent version of nondelegation than current Supreme Court doctrine demands. Though the debate ranges widely, sharp disputes have arisen over whether a series of apparently broad Founding-era delegations defeat originalist arguments in favor of a more stringent modern doctrine. Proponents—whom I call “nondelegationists”—argue that these historical delegations can all be explained as exceptions to an otherwise-strict constitutional limit.

As this article shows, it is highly doubtful that the Founding generation thought of delegation in such categorical terms. The evidence nondelegationists cite in favor of their preferred classifications—systematically assessed here for the first time—is remarkably thin. More importantly, this article highlights how, for the Founding generation, building the administrative capacity needed to fulfill the national government’s responsibilities was not a quest to trace out hard constitutional boundaries between the branches. It was a dynamic and improvisational experiment in governance, in which Congress sought to mobilize the limited resources available to it in order to meet the myriad challenges the new nation faced.

To recapture early delegation’s dynamism, this article focuses on the Remission Act of 1790. It gave the Secretary of the Treasury broad and unreviewable authority to remit statutory penalties for violations of federal law governing maritime commerce—power a strict nondelegation principle would not have allowed. This arrangement was not the obvious choice, and Congress considered vesting this power in a range of institutional actors before settling on the Secretary. Yet despite deep concerns over the wisdom—and even the constitutionality—of concentrating too much power in the hands of a single executive branch officer, Congress repeatedly affirmed this discretion, and the early Secretaries (including Alexander Hamilton) did not hesitate to use it.

This was a pattern Congress repeated elsewhere, making early delegations of varying breadth across the spectrum of federal administration. This experiment in governance was not easy, nor was it free from controversy. Disputes over how and where to allocate governmental authority were frequent and contentious. But if legislative debates occasionally sounded in a constitutional register, overwhelmingly they turned on the kinds of practical considerations that animated Congress’s deliberations over the Remission Act. When it came to designing a workable administrative system for the new federal government, delegation’s boundaries were apparently quite expansive.

SOMEWHAT RELATED: I missed this earlier article by Professor Arlyck, The Courts and Foreign Affairs at the Founding (2017 BYU L. Rev. 1 (2017)).  Here is the abstract: 

When should the courts defer to the executive branch in foreign affairs? This question — which dominates discussion over the proper role for the judiciary in the United States’ relations with the rest of the world — presupposes an inevitable opposition between judicial decisionmaking and executive branch policymaking. On the standard account, the president takes action in foreign affairs, and the courts acquiesce (usually) or resist (occasionally).

But what if the dynamic between the branches in foreign affairs was complementary, rather than oppositional? What if the executive, rather than asserting plenary authority to structure the nation’s foreign relations, sought to delegate to the courts significant responsibility for resolving questions with critical importance for foreign affairs? And what if the judiciary accepted or declined not based on ideas about the scope of presidential authority, but out of consideration for international comity and its own institutional interests?

To explore this idea, this article looks at the Constitution’s first decade, a time when the Washington Administration actively sought to give the federal judiciary significant authority for responding to the nation’s first major diplomatic crisis. Beginning in 1793, French maritime attacks launched from the United States against Great Britain threatened to drag the new nation into an international war it likely could not survive. Convinced of the necessity of remaining neutral, the Washington Administration sought a means of responding to the wartime demands of one side without giving offense to the other.

The answer lay in the courts. Contrary to standard presidentialist accounts of early foreign relations, by delegating to the courts responsibility for resolving disputes over British property captured by French warships operating from the United States, the executive sought to mobilize the institutional resources of a coequal branch of government to manage a controversy it had neither the will nor the means to address. As this article establishes, however, federal judges resisted the administration’s recruitment effort, evincing grave doubts about the propriety, under treaty and the law of nations, of assuming jurisdiction over such cases. Though in many respects judges supported the administration’s goals, in their decisions they made clear that the executive branch’s policy priorities would need to be balanced against the judiciary’s own institutional concerns and interests.

While current scholarship on the relationship between the courts and the president in foreign affairs largely focuses on questions of deference, the Neutrality Crisis tells us a different tale, one in which judicial decisionmaking complements executive branch policymaking, rather than undermines it. Accordingly, the account presented here reminds us that executive primacy and judicial acquiescence are not the only ways to think about executive-judicial relations in foreign affairs. At the same time, judicial skepticism in the 1790s about the wisdom of becoming enmeshed in foreign affairs disputes suggests that judges themselves might not always agree.

This idea of the courts as taking a modest role in foreign affairs in the post-ratification period is consistent with the views I expressed in this article: Courts and Foreign Affairs: 'Their Historic Role' (35 Const. Comm. 173 (2020)).  I should have made use of Professor Arlyck's work in that project.

03/16/2021

Ed Whelan on John Finnis on Abortion and the Constitution
Michael Ramsey

At NRO Bench Memos, Ed Whelan: Are Permissive Abortion Laws Unconstitutional?  From the introduction:

In the current issue of First Things, the distinguished scholar John Finnis has a noteworthy essay bearing the title “Abortion Is Unconstitutional.” In that essay, Finnis goes beyond arguing merely that Roe v. Wade was wrongly decided and that abortion policy should be decided by democratic processes in the states. As his title suggests, he instead argues that the unborn child is a “person” within the meaning of the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment and, as such, possesses general protections against being aborted.

I will explain in this post why I am not persuaded by Finnis’s argument. At the outset, let me emphasize three points. First, I fully agree with Finnis that “prohibiting the killing of the unborn is a matter of simple justice to the most vulnerable among us.” Second, as I observed more than fifteen years ago in setting forth the “three competing positions on what the Constitution says about abortion,” I believe that the argument that Finnis is making “is far more credible than the position taken by the Court in Roe.” Third, in the years since then, advocates of that argument—such as law professor Michael Stokes Paulsen (author of “The Plausibility of Personhood”), Joshua Craddock, and Finnis himself—have deployed the methodology of originalism to make a much stronger case for their position than I had been aware of.

And from later on:

According to Finnis, by the end of 1868, 30 of the 37 states then in the Union had enacted anti-abortion statutes that superseded the common-law prohibition on abortion after quickening, and 27 of these 30 states criminalized abortion “before (as well as after) quickening.”

That would mean that the Fourteenth Amendment, on Finnis’s reading, obligated at least ten states to enact statutes that generally prohibited abortion from conception. If this “plain meaning” would have been “too obvious to need discussion” among the ratifying legislators, wouldn’t we expect some evidence somewhere that some legislators in those ten states recognized that the Fourteenth Amendment would obligate them to enact such statutes? Or that, immediately after the Fourteenth Amendment was ratified, legislators in most or all of those states would have enacted such statutes and cited the Fourteenth Amendment in support of doing so?

This, after all, was the heyday of the movement to codify prohibitions on abortion. By Finnis’s numbers, roughly half the states in the Union had enacted anti-abortion statutes in the two decades before 1868. How simple it should have been for proponents of such statutes to alert legislators in the ten states that they needed to codify a general ban on abortion from conception, and how prompt, under Finnis’s theory, would have been the response.

As Robert Bork wrote in a First Things debate on the same topic two decades ago:

It passes belief that nobody would have said so or raised the question for discussion, but the records are bare of any such question or discussion. The conclusion can only be that those who adopted these Amendments addressed only the rights of persons who had been born.

Agreed, though I would say that the question is whether a fetus was defined as a "person" in nineteenth century law prior to 1868.  The understandings of the state legislature are relevant to the question, but not decisive.  As to the definition of "person," it seems to me that Professor Finnis makes some interesting points but ultimately does not show any more than that a fetus was considered in law as a person for some purposes but not others, to a greater or lesser extent depending on the state.  That does not seem enough to establish a constitutional rule as an originalist matter.

Of course, if originalism is not our law, conservative Justices might conclude that evolving understandings of the beginning of life might make it appropriate to give the unborn all the rights of born children, irrespective of the 1868 understanding.

03/15/2021

John McGinnis & Michael Rappaport: Presidential Polarization
Michael Ramsey

John O. McGinnis (Northwestern University - Pritzker School of Law) and Michael B. Rappaport (University of San Diego School of Law) have posted Presidential Polarization (56 pages) on SSRN.  Here is the abstract:

Political polarization is a great political problem of our time. While it has many sources, one important cause is the deformation of our governmental structure. That structure once required consensus to enact important policy changes. Now the President can adopt such changes unilaterally.

Because the President represents the median of his or her party, not of the nation, the decisions of the President normally are more extreme than what would emerge from Congress, particularly when, as is usually the case, the houses of Congress and the President are divided among the parties. Domestically, Congress’s delegation of policy decisions to the executive branch allows the President’s administration to create the most important regulations of our economic and social life. The result is relatively extreme regulations that can shift radically between administrations of different parties, creating polarization and frustrating the search for political consensus. In the arena of foreign affairs as well, presidential power to engage in military interventions and to strike substantial international agreements on the President’s own authority avoids the need to compromise to achieve political consensus.

Understanding the institutional roots of polarization provides a roadmap to changing the law to restore a constitution of compromise. Excessive delegation should be curbed, forcing Congress to make key decisions. The President's initiation of hostilities and executive agreements should be limited by requiring prior congressional authorization or swift congressional ratification after the fact. None of these reforms require us to begin the world anew, but instead to return to tried and tested constitutional structures. In a politics where compromise is routinely required, citizens would become less polarized, seeing each other less as targets or threats and more as partners in a common civic enterprise.

Agreed.  One might add as well that the politicization of the courts (especially the Supreme Court) is part of this phenomenon.  As the courts play an outsized role in policymaking, the President's power to nominate judges and especially Justices becomes much more important (and so more polarizing) than it was under the original design.

(Via Instapundit.)

03/14/2021

Anthony Moffa: Constitutional Authority, Common Resources, and the Climate
Michael Ramsey

Anthony Moffa (University of Maine School of Law) has posted Constitutional Authority, Common Resources, and the Climate (Utah Law Review , 2021, forthcoming) (47 pages) on SSRN.  Here is the abstract:

This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of Congress’s power under the clause. The argument put forward in this piece completes the picture, making an affirmative case for a fuller, conservationist original understanding, one that acknowledges the historic role of the federal government in preserving the nation’s environment and natural resources.

03/13/2021

Stephen Sachs on Justice Thomas in Uzuegbunam v. Preczewski
Michael Ramsey

At Volokh Conspiracy, Stephen Sachs (Duke): Meanings, Intentions, Original Law.  From the introduction: 

In the Supreme Court's recent standing decision, Uzuegbunam v. Preczewski, both sides made originalist arguments. An interesting post by Mike Dorf asks what kind of originalism this was.

To Dorf, neither Justice Thomas, for the majority, nor the Chief Justice, in dissent, really sought the original public meaning of the terms "Cases" or "Controversies." They didn't "consult late 18th century dictionaries, corpuses, and perhaps other sources," to ask "whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a 'case' or 'controversy.'" Instead, the Court cited the views of people like Justice Story or Lord Holt on whether common-law courts could hear suits for nominal damages. Thus, the Court must have been engaging in "old-school intentions-and-expectations originalism"—"showing that the framers and ratifiers of the Constitution intended and expected the courts to hear cases in which the plaintiff sought only nominal damages."

This iron choice between meanings or intentions leaves out another important possibility, namely the original law. If Article III courts could or couldn't hear nominal-damages suits at the Founding, the same likely remains true today. The history matters, not because we have an affirmative obligation to do as the Founders did, but to the extent the courts lack any new authority to do differently: perhaps nothing has happened to abridge, enlarge, or modify the scope of the judicial power since it was adopted in Article III.

So the reason why Justice Story and Lord Holt seem obviously relevant is that we want to recover what the law was upon Article III's ratification—and Justice Story and Lord Holt, neither framers nor ratifiers, might still know more about this than we do. Article III let the federal courts hear "Cases, in Law and Equity, arising under . . . the Laws of the United States." What we need to know isn't really the meaning of the words "Cases" or "in Law," so much as the scope of the common-law jurisdiction those words would have conferred. If common-law courts in general could hear these sorts of cases at the Founding, it's harder to argue that Article III forbade the federal courts from doing so.

Agreed, though I'm not sure this is different from saying that Article III's text incorporated the ordinary modes of adjudication of the common law courts, which I would describe as its public meaning (see my thoughts on the case and Professor Dorf's reading here).

03/12/2021

Leonid Sirota & Mark Mancini on Interpretation and the Rule of Law
Michael Ramsey

At Double Aspect, Leonid Sirota & Mark Mancini: Interpretation and the Value of Law -- Why the interpretation of law must strive for objectivity, not pre-determined outcomes.  From the introduction:

We write in defence of a simple proposition: there is a value in ordering relations among individuals in large communities through law, rather than through other modes of exercising authority, and this value is not reducible to the goodness―by whatever metric―of the content of the law. Of course, good law is better than bad law, but law as a form, as the institution that allows individuals, groups, and organizations to interact with one another in predictable ways while constraining what those with power can do to those without, is precious quite apart from its substantive merits.

Law is the only mediator we have in a pluralistic society where there is limited agreement on foundational moral values, and still less on the best ways of giving them effect. Law records such agreement as exists for the time being, while also exposing this record to critique and providing a focus for efforts at reform. It is neither sacred nor permanent, but it is a common point of reference for the time being for people who disagree, sometimes radically, about the ways in which it should be changed. These are valuable functions regardless of whether one agrees with the substance of the law as it stands from time to time. Increasingly, however, certain schools of thought tend to deny that law has any value apart from its utility as a means to some political or another. We regard this as a dangerous development.

Now, to serve as the common point of reference in the face of widespread disagreement about values and policies, law must have some characteristics beyond its substantive political content; it must contain other features, often described in the literature on the Rule of Law. For example, it must be public, sufficiently certain, and stable. Of course, law actually enacted by constitution-makers, legislators, or officials exercising delegated authority, or articulated by common law courts, sometimes falls short of the ideals of clarity or certainty. Sometimes the words of this law will be broad, dynamic, and open-textured. But for law to fulfil its function, indeed to be law at all, it must have a fixed content independent of the views and preferences of those to whom the law applies. To the extent this understanding of law is now considered unorthodox, we hope to correct the record.

And from later on:

... [L]living constitutionalism asks judges to change or override the meaning of the law as written in the name of extraneous moral principles or policy preferences, which it purports to locate in the political community. Pragmatism in statutory interpretation does much the same thing. This approach is problematic enough when it comes to ordinary legislation, because it arrogates the process of amendment to judges. It is doubly troubling in the constitutional realm: not only does it arrogate the process of amendment to judges, but it undermines the purpose of Constitutions—to place certain structural choices about institutions, as well as certain individual rights and freedoms, beyond the reach of the ebb and flow of divided public opinion, leaving their amendment to more consensual procedures.

Unfortunately, this problem is not confined to one side of the political spectrum. A new illiberal strain of legal thought has risen on the right. Driven by Adrian Vermeule’s theory of “common good constitutionalism”, the idea is that conservatives should adopt a style of constitutional interpretation that would “involve officials reading vague clauses in an openly morally infused way … to reach determinations consistent with the common good.” The moral principles that would guide this endeavour are those drawn, above all, from the Catholic natural law tradition; the definition of the common good to which judges would advert is thus one which is, to put it mildly, not universally shared in pluralistic societies.   

This attempt by those on the right to reverse-engineer such an interpretive theory should be rejected just as firmly as living constitutionalism, which it mimics. For Professor Vermeule, for example, the very fact that progressives have used constitutional law itself to achieve their aims justifies a conservative attempt, not to put an end to such tactics, but to resort to them, albeit in the service of a different set of values. Like the progressives, he and his disciples look to extraneous moral and policy commitments as guides for legal interpretation, disregarding the law’s role as the authoritative record of the settlement of disagreement and point of reference for citizens whose views of what is good and just differ, seeking to impose pre-ordained results regardless of whether they are consistent with what the law actually is. It too regards separation of powers as passé, a relic of the Enlightenment’s mistakes and an obstacle in the path of those who know better than voters, constitutional framers, and legislators.

In conclusion:

In sum, we propose not to purge the law of moral and policy considerations, but to re-commit to the view that considerations embedded in legal texts adopted by democratic institutions after proper debate and subject to revision by the same institutions are the ones that ought to matter in legal interpretation. They, that is, rather than the real or hypothetical values and needs of contemporary society, let alone the conjectures of 16th century scholars from the University of Salamanca.

This upholds the authority of democratic institutions while calling on the courts to do what they ought to be able to do well: apply legal skills to reading and understanding legal texts. No less importantly, this allows the law itself to perform its unique and precious function, that of providing a touchstone for the diverse members of pluralistic communities, who disagree with one another’s moral and political views, yet still need a framework within which disagreements can be managed and, more importantly, they can simply get on with their lives. The illiberal attempts to subvert the law’s ability to do so, in the pursuit of victories which would come at the expense of citizens’ personal and political freedom, are a cause for concern, and for resistance.

Agreed.

03/11/2021

Josh Blackman and Seth Barrett Tillman on Impeachment in the U.S. Constitution and the New York Constitution
Michael Ramsey

At Volokh Conspiracy, Josh Blackman and Seth Barrett Tillman: Comparing the Impeachment Process under the United States Constitution (1788) and the New York State Constitution (1894).  From the introduction: 

On Monday, Republican members of the New York State Assembly drafted a resolution to impeach Governor Andrew Cuomo. In this post, we will compare the impeachment process under the United States Constitution (1788) and the New York Constitution (1894). First, the quorum rule makes impeachment more difficult in New York. Second, the New York Constitution does not impose substantive limitations on the scope of impeachable offenses. Third, the New York Constitution creates a specially constituted court to try impeachments, and that court includes members of the state judiciary. Fourth, it is unclear whether the New York Constitution permits the legislature to disqualify an impeached office holder from holding elected state positions.

With apologies, I can't help but focus on this paragraph:

Under the U.S. Constitution, the House can impeach a covered officeholder for "treason, bribery, or other high crimes misdemeanors." U.S. Const. art. II, § 4. The scope of this language has long been debated. To this day, people disagree about whether this provision includes only statutory crimes, or wrongs specifically related to the duties associated with the impeachment defendant's position, or both. Yet, historically, there has been and remains widespread agreement that this language furnishes a substantive limit on what charges the House can proffer in articles of impeachment.

Yes, it does.  But if it does, why doesn't it also limit the people who can be impeached (that is, "the President" but not private citizens who used to be President)?  Either Article II, Section 4 is a limit on the impeachment power or it isn't.  (See my earlier argument here).  If it is read as a limit (as almost everyone agrees) with respect to impeachable conduct, it also should be read as a limit as to impeachable persons.  (Apologies for the digression.)

Interestingly, as Professors Blackman and Tillman note:

New York's first post-independence state constitution also had a substantive limitation on the impeachment power. Under Article 33 of the New York Constitution of 1777, the power to impeach was limited to "mal and corrupt conduct in their respective offices." But that limitation was dropped in a subsequent state constitution: the New York Constitution of 1846. Article VI, § 1 of the 1846 state constitution simply states that "The assembly shall have the power of impeachment, by the vote of the majority of all the members elected." There was no substantive limitation on the nature of the charges which the Assembly may bring. Likewise, under the current state constitution, i.e., the New York Constitution of 1894, there is no substantive limitation on the nature of the charges which the Assembly may bring.

03/10/2021

Evan Zoldan: Canon Spotting
Michael Ramsey

Evan C. Zoldan (University of Toledo College of Law) has posted Canon Spotting (Houston Law Review, forthcoming) (55 pages) on SSRN.  Here is the abstract:

The canons of statutory interpretation have never been more important to theories of interpretation or more central to the interpretive methodologies employed by courts. Nevertheless, there is no accepted way to determine whether an interpretive method is a canon of interpretation. Without a way to identify canons, we cannot evaluate whether the countless cases that turn on the application of canons are correct. And without a way to identify canons, normative debates about the canons remain incomplete and muddled.

This Article proposes and defends three criteria for spotting canons—that is—for determining whether an interpretive method is a canon of interpretation. An interpretive method is canon only if 1) it actually is used by legal interpreters, 2) using it affects interpretive outcomes, and 3) its proponents claim that it is theoretically justified. Using these three criteria to distinguish between canons of interpretation and noncanonical interpretive methods will allow scholars and courts to distinguish normative from descriptive arguments about the canons, allowing for clearer and more precise debates about both.

Via Larry Solum at Legal Theory Blog, who says "Highly recommended" and adds:

This is another topic where the interpretation-construction distinction is essential to conceptual clarity.  Interpretation discovers meaning (communicative content).  Construction determines legal effect.  The so-called "linguistic canons" are canons of statutory interpretation--they are rules of thumb that identify recurring patterns of inference from text and context to communicative content.  The so-called "substantive canons" are legal norms that determine the legal effect of a statute.  Conflating the distinction results in conceptual confusion.

Agreed, but I think this raises serious doubt as to the legitimacy of (at least some of) the so-called substantive canons.  Unless the text is wholly ambiguous as to a point in issue, what is the justification for a court using a substantive canon (that is, a canon not premised on ordinary use of language) to reach a result different from the statute's actual (if perhaps somewhat obscured) meaning?

03/09/2021

Originalism in Uzuegbunam v. Preczewski
Michael Ramsey

Yesterday the Supreme Court ruled 8-1 for the claimant in Uzuegbunam v. Preczewski, in an originalist opinion by Justice Thomas.  The issue was whether a claim for nominal damages preserves an otherwise moot claim.  (SCOTUSblog coverage here).  Thomas wrote that nominal damages were sufficient to maintain an action at common law at the time the Constitution was ratified.  (Chief Justice Roberts dissented.)

From the introduction to the substantive part of Thomas' opinion:

In determining whether nominal damages can redress a past injury, we look to the forms of relief awarded at common law. “Article III’s restriction of the judicial power to ‘Cases’ and ‘Controversies’ is properly understood to mean ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’” Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U. S. 765, 774 (2000) (quoting Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 102 (1998)); cf. Memphis Community School Dist. v. Stachura, 477 U. S. 299, 306 (1986) (relief for “§1983 plaintiffs . . . is ordinarily determined according to principles derived from the common law of torts”).

...

The award of nominal damages was one way for plaintiffs at common law to “obtain a form of declaratory relief in a legal system with no general declaratory judgment act.” D. Laycock & R. Hasen, Modern American Remedies 636 (5th ed. 2019). For example, a trespass to land or water rights might raise a prospective threat to a property right by creating the foundation for a future claim of adverse possession or prescriptive easement. Blanchard v. Baker, 8 Me. 253, 268 (1832) (“If an unlawful diversion [of water] is suffered for twenty years, it ripens into a right, which cannot be controverted”). By obtaining a declaration of trespass, a property owner could “vindicate his right by action” and protect against those future threats. Ibid. Courts at common law would not declare property boundaries in the abstract, “but the suit for nominal damages allowed them to do so indirectly.” Laycock, supra, at 636 ...

In an interesting post at Dorf on Law, Michael Dorf objects to Thomas' methodology: Old-School Intentions-and-Expectations Originalism in the Nominal Damages Case.  He writes:

The Court's cases purport to derive the prohibition on advisory opinions and the related doctrines of standing, ripeness, and mootness from the language of Article III extending the judicial power of the United States to "cases" and "controversies." A public-meaning originalist opinion in Uzuegbunam would therefore consult late 18th century dictionaries, corpuses, and perhaps other sources to determine whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a "case" or "controversy." But just as the expectations of Americans circa 1868 that schools would remain racially segregated is not dispositive of the scope of "equal protection" in the Fourteenth Amendment, so too, for a public-meaning originalist, the concrete expectations of eighteenth-century Americans regarding nominal-damages actions would not be critical to the question in Uzuegbunam, which is this: Do nominal-damages actions fall within the original public meaning of "cases" and "controversies."

Is that how Justice Thomas proceeds in Uzuegbunam? Nope. Nor does Justice Thomas say that the meaning of "cases" and "controversies" is indeterminate with respect to nominal-damages-only cases and that therefore the Court must turn to what originalists sometimes call "construction," a process that comes after interpretation. Justice Thomas simply makes no effort whatsoever even to ask, much less to answer, the threshold semantic question of what the words "cases" and "controversies" meant in 1789.

That is not to say that the Uzuegbunam proceeds in living Constitutionalist mode. On the contrary, the opinion is highly originalist--but it engages in old-school intentions-and-expectations originalism. Justice Thomas extensively canvasses English, colonial, and early post-ratification cases, all with the evident purpose of showing that the framers and ratifiers of the Constitution intended and expected the courts to hear cases in which the plaintiff sought only nominal damages.

And in conclusion:

Of course, there is a connection between original public meaning and original intentions and expectations, often a strong one. In many contexts, what the framers and ratifiers intended and expected reflects the words they used. For that reason, some of the evidence that bears on one kind of originalism can also bear on the other. But the enterprises are not identical, a point that is crucial to originalists' argument that they can have their originalism without sacrificing canonical cases (like Brown v. Board of Education and the modern sex discrimination decisions) that adopt interpretations at odds with the framers' and ratifiers' intentions and expectations.

In one of my prior articles on modern originalism, I described the slippage between the scholars' version and the version practiced by the justices and politicians as a bait and switch. I wrote that the scholars

make originalism respectable by answering objections leveled at 'expectations originalism', but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers' and ratifiers' expected applications in considering concrete cases.

I had in mind there--and said both there and elsewhere--that the move was especially pernicious because it camouflages results reached on ideological grounds. We learn from Uzuegbunam that the bait-and-switch has become so routine for the Justices that they deploy it even in non-ideologically-divisive cases and apparently unwittingly.

I disagree.  I don't see a problem with Thomas' methodology as a matter of determining public meaning.  In the context of the Constitution (a legal document), the best way of understanding the original legal meaning of "Cases" and "Controversies" -- and, relatedly, the "judicial Power" -- is to look to the common law practice under English and American law.  This is a common way of understanding aspects of judicial power and procedure that the Constitution appears to carry over from English law.  For example, the original meaning of constitutional terms such as jury trial, due process, confrontation of witnesses, etc., are routinely determined that way.  Its not some nefarious substitution of expectations for public meaning.  The original public meaning, for constitutional practices adopted from common law, was the common law meaning (unless there was some reason to think the Constitution was departing from it).

Professor Dorf argues that public meaning originalists should consult "dictionaries, corpuses, and perhaps other sources to determine whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a 'case' or 'controversy.'"  But to do that (to the exclusion of asking what courts were actually doing at the time) would prompt criticism that the originalist inquiry was artificially divorced from actually historical practice.  And rightfully so.  The best evidence of what a "case" was in 1788 was what cases at the time actually consisted of.