12/22/2019

Rob Natelson on the North Carolina Ratification Convention
Michael Ramsey

At the Independence Institute, Rob Natelson:  New information on the Constitution’s ratification—Part IV North Carolina.  From the introduction:

The editors of the Documentary History of the Ratification of the Constitution recently released two volumes of documents covering the Constitution’s ratification in North Carolina—the last state covered in the Documentary History’s series. My earlier updates summarized new findings from volumes covering South CarolinaNew Hampshire, and Vermont. For full understanding, you should read this blog entry in conjunction with those three.

The North Carolina volumes are numbers 30 and 31 of the set. By far their most important lesson pertains to Article V of the Constitution—specifically the convention method of proposing amendments. The documents firmly debunk claims by some commentators that the composition of an amendments convention is unknown, unknowable, and/or must be determined by Congress. Instead, the North Carolina documents amply confirm what the records from other states tell us: an amendments convention is a “convention of the states.” This means it is composed of state delegations of equal voting power in the 300-year tradition of other conventions of the states and conventions of colonies.

And among a number of interesting findings:

*  As in other states, “Commerce” was understood to mean only mercantile trade and a few related subjects and not the entire economy. 30 DH 12, 14; 31 DH 797. Other than copyright laws, federal power was not to extend to regulating the press (or, presumably, other local businesses.) 30 DH 10, 27. Similarly, Congress has no general power to legislate criminal law. 30 DH 427. However, the founding generation recognized that federal regulation of commerce necessarily affects other human activities, such as agriculture and manufactures. 30 DH 56, 244

*  It was recognized that the courts would undertake judicial review to void unconstitutional federal actions. 30 DH 291.

*  The North Carolina volumes further undermine the claim that the Constitution was adopted to protect slavery. Even in a slave state like North Carolina some of the Constitution’s strongest advocates were people who opposed slavery and the slave trade. 30 DH 103, 317, 389, 415. (And on the other side, the Constitution was opposed by many slaveholders.) Even the three-fifths compromise was not entirely pro-Southern—some North Carolinians objected to it because it increased the taxes of slaveholding states. 30 DH 253. Nor was the compromise driven by racism (although, of course, racism provided a justification for slavery). 30 DH 253.

*  The right to keep and bear arms was understood to include “keeping arms for [one’s] own defense.” 30 DH 123.

12/21/2019

More on the Unimpeached President
Michael Ramsey

At Volokh Conspiracy, Keith Whittington has a great post on the meaning of impeachment:  When Is an Officer Impeached? But I draw the opposite conclusion from his evidence.  It turns out to be a question of methodology.

First, he confirms Andrew Hyman's argument that the original meaning of impeachment was to bring a formal accusation -- in the case of the U.S. Constitution, for the House to bring a formal accusation to the Senate.

When the House contemplated its first impeachment, of Senator William Blount in 1797, there was a fair amount of uncertainty about how it should do it. Legislators looked to the English Parliament to try to figure out how the process worked and did their best to follow along.

Notably, that meant passing a resolution in the House designating someone to walk over to the Senate and impeach Senator Blount. The Senate Journal records that a message had been received from the House to be delivered by Representative Samuel Sitgreaves, to wit:

Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.Mr. President: I am commanded, in the name of the House of Representatives, and of all the people of the United States, to impeach William Blount, a Senator of the United States, of high crimes and misdemeanors; and to acquaint the Senate, that the House of Representatives will, in due time, exhibit particular articles against him, and make good the same.

The House had commanded Sitgreaves to go to the Senate and impeach Blount. Once that was done, then the Senate could send notice to Blount that he had been impeached and could prepare for trial. The House would draft and exhibit in the Senate articles of impeachment later.

This was the form that the House used to impeach officers all through the nineteenth century. The form was the same when the House impeached judges, a justice, a cabinet member, and a president. In 1904, the Senate sergeant-at-arms announced the presence of a member of the House who

In obedience to the order of the House of Representatives we appear before you, and in the name of the House of Representatives and of all the people of the United States of America we do impeach Charles Swayne, Judge of the district court of the United States for the northern district of Florida, of high crimes and misdemeanors.

But he goes on to note that in the early 20th century the House changed forms and began describing the adoption of articles of impeachment as the impeachment.

In 1912, the Senate Journal records a rather different message from the House. At that time, the House instructed its chief clerk to send a written message to the Senate which was then entered into the record of the upper chamber. The clerk was "directed to communicate to the Senate"

Resolved, That a message be sent to the Senate to inform them that this House has impeached, for high crimes and misdemeanors, Robert W. Archbald, circuit judge of the United States.

The Senate was merely notified that the House had already impeached Judge Archbald and informed that a set of named managers had been appointed to exhibit before the Senate articles of impeachment. Subsequently the House likewise adopted resolutions specifying that an officer "is impeached," as it did with President Bill Clinton in 1998, and then sent a written message to the Senate informing the upper chamber that an impeachment had occurred and demanding that the Senate convict and remove the officer in question.

From this he concludes that ("[p]robably") the constitutional meaning has changed so that a President is now impeached by the House vote, even though previously a President was only impeached by delivery of the articles to the Senate.

That seems wrong to me, though, as a matter of constitutional interpretation.  If the Constitution means what it meant when it was adopted, the House cannot change its meaning.  "Impeachment" had a particular meaning, which persists regardless of what the House may later choose to call things.  Otherwise, the House (or any other branch of government, including the President) can amend the Constitution merely by calling things by different names.  Put another way, the House can call anything "impeachment" that it chooses, but "impeachment" for constitutional purposes remains what the founding generation understood it to mean: bringing an accusation to the Senate.

One might say it's an academic question.  But in fact there are practical consequences, as suggested in point #4 of this post.  If impeachment occurs only upon delivery of the accusation to the Senate, then the Senate cannot begin an impeachment trial until the accusation is delivered.  The Senate has sole power to try impeachments, but that power isn't triggered until an impeachment occurs.  If Professor Whittington is right that the constitutional meaning has been changed by practice, though, that conclusion no longer holds.  If impeachment occurs upon the House's adoption of articles of impeachment, then the Senate's power to try the impeachment is triggered at that point, and the Senate can (constitutionally) proceed with the trial, whether or not the articles are delivered.  The Senate has no constitutional obligation to wait for the House to do anything further (though of course it might choose to do so out of courtesy).

In sum, the House can't have it both ways.  It cannot both declare an impeachment and prevent the Senate from proceeding with a trial.  Either  there is no impeachment (and so no trial) until the articles of impeachment are delivered, or there is an impeachment and the trial may proceed.

And this makes perfect constitutional sense.  There is no reason to allow the House to impeach a President but deny the Senate the ability to hold a trial.

 

 

 

Laurence Claus: A Republic, If the Courts Can Keep It?
Michael Ramsey

Laurence Claus (University of San Diego School of Law) has posted A Republic, If the Courts Can Keep It? (Wisconsin Law Review, forthcoming) (18 pages) on SSRN.  Here is the abstract:

This contribution to a conference celebrating Andrew Coan’s Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard Univ. Press, 2019) makes three primary points.

First, I explain why the Supreme Court’s flawed reasoning in INS v. Chadha supports Coan’s judicial capacity theory of Supreme Court decision making.

Second, I show why judicial capacity concerns do not support the Supreme Court’s decision in Rucho v. Common Cause to treat the constitutionality of partisan gerrymandering as a nonjusticiable political question. The Court could and should have announced a bright line rule against any partisan calculation in districting decision making, and let lower courts adjudicate the pure question of fact that such a rule would raise. Recent scholarship is converging in this direction. The weakness in Justice Kagan’s dissent lay in conceding any place for partisan calculation in districting. Predominant purpose tests, pulled across from racial affirmative action cases, do not fit partisan gerrymandering. Even the Court’s staunchest opponents of racial affirmative action concede that the goals of that action may be laudable; those opponents just contend that weightier moral reasons call for race neutrality in almost all circumstances. No one on the Court uses “laudable” to describe the goals of partisan gerrymandering. Partisan reasons are not redeemed by being low impact. Partisan reasons should have no impact on governing actions.

Third, I argue that the Court should have identified a nonjusticiable political question not in Rucho, but, as other recent scholarship has suggested, in Shelby County v. Holder. Congress’s provision for preclearance in the Voting Rights Act serves not only to uphold the promises of the fourteenth and fifteenth amendments, but also to fulfill the national government’s constitutional duty to guarantee every state in the Union a republican form of government. The Court has long held that it will not second guess the judgment of the elected branches about what republican form requires.

12/20/2019

Some Impeachment Conundrums [Updated]
Michael Ramsey

If nothing else, the impeachment proceedings have encouraged us to think about some interesting hypotheticals.  Here are a few: 

1.  Can former Presidents be impeached?  Leading originalist-oriented blogger Keith Whittington says yes.  But I am not so sure.  The Constitution does not answer the question directly.  But it seems to contemplate a process focused on current officeholders.  Article II, Section 4 (we all now know) says that "The President, Vice President and all civil officers of the United States shall be removed from office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors."  Article I, Section 3 says "Judgment in Cases of Impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States..."  Nothing in the text refers directly to impeachment of former officers.  (Professor Whittingtion notes that some state constitutions did refer to impeaching former officers, but the Constitution's failure to adopt that langauge seems to cut against, rther than favor, the existence of the power.  True, one could say that an impeachment could be used just to disqualify a former officeholder from future office.  But if so, why would impeachment be limited to former officeholders?  Could a person be preemptively impeached before becoming an officeholder?  Professor Whittington indicates that the House could not impeach a private citizen.  I agree that seems odd, but if impeachment isn't limited to current officeholders, I don't see any other tenable textual limit.  I think the implication of the text is that the process is to remove current officeholders.

2. Can Presidents be impeached more than once?  I think clearly yes.  Nothing in the Constitution suggests otherwise, so it's up to the House to decide.   And just because a President is acquitted of only allegation should not insulate him from other claims of wrongdoing.  Probably a President could even be impeached more than once for the same conduct, if for example new evidence came to light, since double jeopardy protection only applies to criminal charges.

3.  Can the House approve articles of impeachment and not deliver them to the Senate?  (This one is suddenly quite relevant).  I say yes (Noah Feldman suggests otherwise here).  The Constitution says nothing on the matter (as in #2) other than saying that the House has sole power of impeachment, so it's up to the House.  The House could decide, for example, that sending the articles to the Senate is futile.

4.  Can the Senate hold a trial if the House approves articles of impeachment but does not deliver them?  Initially I thought the answer would be yes, on the ground that the Senate has sole power to try impeachments.  But I am persuaded by Andrew Hyman's argument that impeachment does not really happen until the House delivers its accusations to the Senate.  If that's right, then there can be no trial before delivery, because there is no impeachment (and so nothing to try) before delivery.  (Josh Blackman argues otherwise here, but he does not address Andrew's point).

5. Can the Senate summarily dismiss an impeachment?  A number of commentators argue no, because the Constitution says that the Senate has power to "try" impeachments, so there must be an actual trial.  But reading the Constitution closely shows no obligation on the Senate's part to do anything.  The Senate has power to try impeachments, but no duty to try them.  I agree that if the Senate wants to remove someone from office, it must hold a trial (leaving aside what exactly that requires).  But if the Senate does not want to remove someone from office, it doesn't need to do anything.  The situation is parallel to the House sending the Senate a bill on the hope that the Senate will approve it, or the President nominating someone in hopes of obtaining the Senate's advice and consent.  The existence of a power does not imply the existence of a duty.  (Josh Blackman agrees here, expressly citing the Merrick Garland nomination).

UPDATE: On the last point, I had forgotten that David Weisberg addressed the issue on this blog back in March: The Senate Has No Duty to Try Impeachments.

12/19/2019

President Trump Has Not Yet Been Impeached Even Though the House Approved Articles of Impeachment [Updated]
Andrew Hyman

After the House of Representatives approved articles of impeachment against President Trump, the New York Times declared in its headline: “TRUMP IMPEACHED: ABUSE OF POWER AND OBSTRUCTION.”  But after that headline, the Times  mentioned that, “Speaker Nancy Pelosi suggested she may wait to send the articles to the Senate making the timing of a trial uncertain.”  As a matter of constitutional law, there is no impeachment unless and until the House formally delivers its accusation to the Senate and prosecutes its case in the Senate.

The leading law dictionary of the eighteenth century defined impeachment this way: “IMPEACHMENT, [from Lat. impetere.]  Is the Accusation and Prosecution of a Person for Treason, or other Crimes and Misdemeanors.”  That is why the U.S. House of Representatives has sole power not just to vote for articles of impeachment and to deliver them to the Senate, but also to prosecute the President in the Senate.  If impeachment merely meant voting for articles of impeachment, then the House would not be entitled to prosecute its case in the Senate, and the Senate could instead make its own rules about who will prosecute the case.

Of course, there is little doubt that Trump will be impeached, because there is little doubt that a trial will occur in the Senate.  But, as a constitutional matter, he has not been impeached yet, and it is always possible that the House will not get around to delivering its articles of impeachment and then prosecuting its case.

Incidentally, if an article of impeachment contains a smorgasbord of accusations and factual assertions, it is probable that all of those elements in an article of impeachment would have to be proved in order to secure a conviction in the Senate.  The Senate Manual has specified that, “An article of impeachment shall not be divisible for the purpose of voting thereon at any time during the trial.”  So, prosecutors may have to prove nothing less than the entire truth of an article of impeachment.  For example, if an article of impeachment says that the President committed bribery, extortion, and treason then the prosecutors would apparently have to prove all three in order to secure a conviction.

UPDATE (by Michael Ramsey): You heard it here first, but now everyone's saying it...

Andrew McCarthy at NRO: If Impeachment Articles Are Not Delivered, Did Impeachment Happen?

Noah Feldman (!) at Bloomberg:  Trump Isn’t Impeached Until the House Tells the Senate.  Here's the core of his analysis (which is kind of originalist, but also a bit of ipse dixit): 

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

...

The framers drafted the constitutional provisions against the backdrop of impeachment as it had been practiced in England, where the House of Commons impeached and the House of Lords tried the impeachments. The whole point of impeachment by the Commons was for the charges of impeachment to be brought against the accused in the House of Lords.

Strictly speaking, “impeachment” occurred – and occurs -- when the articles of impeachment are presented to the Senate for trial. And at that point, the Senate is obliged by the Constitution to hold a trial.

See also here (via Instapundit):  Trump’s Lawyers Wonder: If Pelosi Never Delivers The Articles Of Impeachment, Does That Mean He’s Not Really Impeached?

Georgetown Summer Program on Originalism (aka "Originalism Boot Camp")
Michael Ramsey

Via Randy Barnett at Volokh Conspiracy

The 2020 Summer Seminar will run from May 18-22. The five-day course runs from Sunday evening, May 17 to Friday evening, May 22, 2020. Morning sessions beginning at 8:00 a.m. followed with a daily luncheon and afternoon meetings each day. A reception and dinner will be held on on Wednesday May 20 and the week concludes with a  farewell reception on Friday May 22.  The application season is open until February 7, 2020.

BOOT CAMP LECTURE TOPICS

• Overview of Originalism (Georgetown Law Professor Lawrence Solum)
• Normative Rationales For Originalism (Georgetown Law Professor Randy Barnett)
• Criticisms of Originalism (George Washington Law Professor Thomas Colby)
• Public Meaning Originalism (Professor Solum)
• Original Methods Originalism (USD Professor Michael Rappaport)
• Framework Originalism (Yale Law Professor Jack Balkin)
• Original Law Originalism (Duke Law Professor Stephen Sachs)
• Diverse Originalism (Brooklyn Law Professor Christina Mulligan)
• Implementing the Second Amendment (Judge Diane Sykes)
• Originalist Methodology (Professor Solum)
• Originalism & the Philosophy of Language (USC Philosophy Professor Scott Soames)
• Corpus Linguistics (Utah Supreme Court Justice Thomas Lee)
• Constitutional Construction (Evan Bernick)
• Originalist Sources (Richmond Law Professor Jud Campbell)
• Cruel and Unusual Punishment (University of Florida Law Professor John Stinneford)

Application instructions are available here.

12/18/2019

Mark Pulliam on Lee Strang on Originalism
Michael Ramsey

At Law & Liberty, Mark Pulliam: Originalism as a Model of Political Communication (reviewing [mostly favorably] Originalism’s Promise, by Lee J. Strang).  From the introduction: 

Originalism’s Promise, Lee J. Strang’s ambitious new book published by Cambridge University Press, was previewed at Law & Liberty a few months ago in a podcast entitled “Justifying Originalism.” In a wide-ranging conversation with Richard Reinsch, Strang hinted at the eclectic nature of his thesis, peppering the discussion with references to Aristotle, Jack Balkin, James Madison, Randy Barnett, Thomas Aquinas, Christopher Wolfe, Robert George, and John Finnis (as well as the familiar names of John McGinnis and Mike Rappaport). “Aristotle’s got a lot to say about Originalism,” he teased.

This is quite a diverse lineup, and fittingly so. Strang’s book, subtitled “A Natural Law Account of the American Constitution,” does not fall into any of the predictable “camps” that have formed among center-right constitutional scholars. Strang declines to “take sides” in the contentious internecine quarrels that have emerged between (for example) conservatives and libertarians, proponents of natural law and “positivists,” advocates of “judicial engagement” and those favoring judicial restraint, Harry Jaffa and his natural rights acolytes, and everyone else, and so forth.

Strang is aware of the myriad divisions and differences—he notes that originalism “is not monolithic” (surely an understatement), and that “originalists disagree on a lot”—but endeavors to reconcile (or at least defend) the many competing strains of originalism, which share the common belief that the Constitution’s original public meaning is its only legitimate and authoritative meaning. Judges should apply, and not invent, constitutional law. Strang’s nemesis is non-originalist theories of interpretation ushered in by the Progressive Movement and enabled by the critique of legal determinacy represented by Legal Realism. ...

And in conclusion: 

Many readers will find no quarrel with Strang’s analysis, but others may prefer Ronald Dworkin’s take (or Hadley Arkes’s, or Robert George’s, or John Rawls’s, or Harry Jaffa’s, etc.). Strang’s exploration of natural law as a justification of originalism is provocative, and certainly original, but not wholly convincing.  If recent trends in constitutional scholarship are any indication, Originalism’s Promise represents only the first shot in what will become an extended volley, perhaps moving the academic debate in a new direction. Let the dialogue begin.

12/17/2019

Carrie Menkel-Meadow: Negotiating the American Constitution
Michael Ramsey

Carrie Menkel-Meadow (University of California, Irvine School of Law; Georgetown University Law Center) has posted Negotiating the American Constitution (1787-1789): Coalitions, Process Rules, and Compromises (Landmark Negotiations from Around the World: Lessons for Modern Diplomacy (Emmanuel Vivet, editor, Intersentia 2019)) (15 pages) on SSRN.  Here is the abstract:

This essay describes the multi-party, multi-issue negotiations of the American Constitutional Convention in Philadelphia (1787), using the lens of negotiation theory. Expert process leadership by George Washington, James Madison and Benjamin Franklin, with deliberation about process rules (e.g. speaking rules, confidentiality) and decision rules (voting and reconsideration, packaging) as well as the use of committees and task groups to facilitate both cross-geopolitical and issue coalitions and specialization, rather than Committee of the Whole (plenary) meetings for all of the deliberations, allowed the negotiation, drafting and (later!) ratification of a monumental political document, with dubious political (and moral) legitimacy at the time of its completion, but considerable robustness, with a large number of amendments (including the “afterthoughts” of the Bill of Rights) over time. While there has been much replication of the text of the US Constitution (in later enacted Constitutions by other countries), not enough consideration has been given to the importance of process choices in comparative political theory (cf. Jon Elster’s work). This essay attempts to illustrate the use of “applied history” in understanding complex diplomatic and political negotiations, by using current theories to explore past behavior.

12/16/2019

U.S. Citizenship for American Samoans (Maybe)
Michael Ramsey

Last week a district court in Utah ruled, in Fitisemanu v. United States, that people born in the U.S. territory of American Samoa are U.S. citizens.  One might think this conclusion to be obvious, as the Fourteenth Amendment says that all persons born "in the United States" are U.S. citizens.  But U.S. statutory law has long provided that American Samoans are "U.S. nationals," not U.S. citizens.  The issue was litigated in the D.C. Circuit back in 2015 (I joined an amicus brief of citizenship scholars in support of the claimants), with the court ruling for the government.

In last week's decision, Judge Waddoups disagreed with the D.C. Circuit in a lengthy originalist-oriented opinion that starts  with the historical background of citizenship (from Calvin's Case in 1608) and describes contemporaneous statements of the Amendment's framers, which make clear that "in the United States" was understood at the time of adoption to include territories of the United States.  Ultimately the court says it is bound by the Supreme Court decision in United States v. Wong Kim Ark --  but Wong Kim Ark did not purport to decide the issue of birth in the territories.  (The issue there was the citizenship of a person born in California to lawful resident aliens.)  So I think the text and history actually play a greater role in the decision than Judge Waddoups admits.  And the outcome seems exactly right to me.

I assume the government will appeal, so it will be an interesting case at the Tenth Circuit and (if that court affirms), likely at the Supreme Court.

(Thanks to Jeremy Christiansen for the pointer).

RELATED:  Mark Joseph Stern discusses the decision (favorably) in Slate: Federal Judge Rules American Samoans Are U.S. Citizens by Birth. Finally.  He comments:

Frustrated by this predicament, three American Samoans living in Utah, along with the Southern Utah Pacific Islander Coalition, filed a lawsuit alleging that the government is violating the 14th Amendment by denying them birthright citizenship. (The plaintiffs are represented by the advocacy group Equally American, which fights for territorial rights.) And on Thursday, Waddoups, a George W. Bush appointee, ruled in their favor. His meticulous 69-page opinion begins with a lengthy exploration of the 14th Amendment’s text and history, both of which suggest that its framers intended it to apply to states and territories. For instance, Sen. Lyman Trumbell, who helped craft the amendment, declared that it “refers to persons everywhere, whether in the States or in the territories or in the District of Columbia.” (Emphasis added.)

I'm not sure Stern is so anxious to credit the text, history and framers' intent when they lead to results he doesn't like, but I agree with him here.  And this case is a further example of how originalism does not always point in the same political direction.

12/15/2019

Seven Problems with Antidiscrimination Due Process
Chris Green

I've posted Seven Problems with Antidiscrimination Due Process to SSRN. Here is the abstract:

I explain seven problems with the view, suggested by Akhil Amar, Kurt Lash, and Ryan Williams, that the Fifth and Fourteenth Amendments’ ban on “depriv[ing] any person of life, liberty, or property without due process of law” entails freedom from the sort of racial discrimination banned by Bolling v. Sharpe and the Civil Rights Acts of 1866, 1870, and 1875:

1. The federal government long imposed racial restrictions on naturalization, beginning in 1790 and including a statute passed two weeks before the Civil Rights Act of 1875.

2. Six of the seven states that Williams identifies as following the Daniel-Webster-pioneered “general law” interpretation of due process imposed openly second-class status on racial grounds without thinking due process might pose any barrier.

3. Democrats fans of due process in 1862 and 1866, most prominently Reverdy Johnson, nonetheless opposed the Civil Rights Act of 1866. They did not think John Bingham’s unusual reading of “law” was baked into the Fourteenth Amendment.

4. Superlawyer Matthew Carpenter made clear that the Privileges or Immunities Clause, and no other clause in the Fourteenth Amendment, banned racial occupational limits.

5. The Republican-beloved Northwest Ordinance, Missouri Compromise, and Wilmot Proviso all labeled racially-discriminatory slavery, and fugitive re-enslavement, “lawful.”

6. “Law” in the Privileges or Immunities Clause covers racially-discriminatory statutes.

7. Many paradigmatic targets of anti-discrimination rules, e.g., special benefits to one racial group, deprive no one of life, liberty, or property.

Please send me any comments!