11/02/2022

Jeffrey Pojanowski & Kevin Walsh on Vermeule's Common Good Constitutionalism
Michael Ramsey

Jeffrey A. Pojanowski (Notre Dame Law School) & Kevin C. Walsh (Columbus School of Law, The Catholic University of America) have posted Recovering Classical Legal Constitutionalism: A Critique of Professor Vermeule's New Theory (Notre Dame Law Review, forthcoming) (60 pages) on SSRN.  Here is the abstract:

Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the Constitution of the United States with his book, Common Good Constitutionalism. As scholars working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Nevertheless, we find Vermeule's rendition wanting. He neglects the way in which the classical legal tradition calls for obedience to the Constitution of the United States as not just the law, but also a law—an ordinance of reason, for the common good, made by one with authority, and promulgated. Vermeule’s version of constitutionalism, which too often substitutes Dworkin’s hermeneutics for a classical understanding of law, is attentive to certain conceptions of reason and the common good, but inattentive to authority and promulgation. With respect to all four of these elements, moreover, Vermeule’s constitutionalism is unanchored historically. He argues for “classical constitutionalism” that is not “enslaved to the original meaning of the Constitution.” But obedience to original law except as lawfully changed is not akin to enslavement that one must overcome. A real law deserves our real obedience, but Vermeule’s version of common good constitutionalism is indifferent—rather than obedient—to the promulgated Constitution. Vermeule's new theory of common good constitutionalism is not a sound classical approach to our Constitution, but rather a deft Dworkinian account that fits and justifies a different order than the one we have inherited.

11/01/2022

William Baude & Stephen Sachs: The Official Story of the Law
Michael Ramsey

[Editor's note: apologies for recent intermittent posting and access.  Our hosting service has been experiencing some issues.]

William Baude (University of Chicago - Law School) & Stephen E. Sachs (Harvard Law School) have posted The Official Story of the Law (Oxford Journal of Legal Studies, forthcoming) (24 pages) on SSRN.  Here is the abstract:

A legal system’s ‘official story’ is its shared account of the law’s structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.

Via Volokh Conspiracy, where the authors add: 

As a matter of constitutional law, our argument responds to a recurring question about how to think about "our law" of constitutional interpretation. Suppose one thinks that judges systematically invoke one set of considerations in their official legal reasoning, while being motivated behind the scenes by something else. (For instance, one might think that courts publicly reason in terms consistent with original law originalism, while actually trying to promote some set of non-legal policy goals.) The Official Story explains why the rules of our legal system are evidenced by the former rather than the latter.

This is an excellent short essay that clarifies in my mind the disagreement I have with the authors regarding originalism.    I just don't think that modern U.S. constitutional law has an "official story" in this sense (other than that the law is what the Supreme Court says it is until the Court says otherwise).  Originalism, in my view, is the movement to convince the legal culture that the "official story" ought to be adherence to the Constitution's original meaning.

10/29/2022

Jennifer Mascott & Trent McCotter: Federal Officer Suits by Common Law
Michael Ramsey

Jennifer Mascott (George Mason University - Antonin Scalia Law School) & R. Trent McCotter (George Mason University, Antonin Scalia Law School) have posted Egbert v. Boule: Federal Officer Suits by Common Law (Cato Supreme Court Review, 2021-2022) (30 pages) on SSRN.  Here is the abstract: 

This term, the U.S. Supreme Court all but nailed the door shut on one of the modern era’s last remaining vehicles for monetary damages to heap accountability on bad-acting federal officials. In a 5-1-3 decision, the Court rejected the extension of Bivens relief to retaliation and assault claims stemming from a border confrontation.

This may trouble individuals concerned with history. Founding-era evidence suggests that damages suits against federal officers provided an important complement to impeachment as an accountability mechanism outside the hierarchical structure of executive branch direction and command. As scholarship has previously explained, for many decades after the ratification of the U.S. Constitution federal officers faced common-law claims for damages when allegedly engaged in unlawful acts. These common-law suits existed long before Congress established statutory general federal question jurisdiction in 1875. And whereas Congress enacted 42 U.S.C. § 1983 to authorize monetary damages for constitutional violations under color of state law, Congress has enacted no companion act authorizing damages suits for federal officer constitutional violations.

The Court attempted to bring its pragmatic vision of equity to this state/federal asymmetry in 1971 when it held in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics that the text of the Constitution contains an implicit right to monetary damages in the event of a federal violation of individual rights. The pressure on this form of relief intensified in 1988 when Congress enacted the Westfall Act, removing the availability of state common-law remedies for actions by federal officials other than claims alleging constitutional violations. But in the years following Bivens, the Court has repeatedly reconsidered its contours, rejecting a Bivens claim for the 12th time in 40 years this term in Egbert. After Egbert, policymakers and theorists who believe that there is either a constitutional or good governance mandate to ensure that bad federal actors face individual monetary liability must turn to Congress (or to the courts, perhaps less ideally) to revisit the severity of the Westfall Act. Or they must look for other state-law or statutory-driven solutions.

This article delves into the historical role of monetary suits against federal officers to explain how such suits differed structurally in a constitutionally meaningful way from the suits that Bivens authorized, unpacking the separation-of-powers implications of the Court’s rejection of federal judicial creation of damages relief. The Court’s decision in Egbert stands as a retrenchment of 20th-century claims of judicial authority to apply the law as the Court sees fit. As such, the ruling in Egbert ties into the central theme of the 2021-22 Supreme Court Term—which actor has the power to decide. Egbert reaffirmed the scope of congressional authority to decide the contours of federal liability and recovery in federal courts and puts squarely on Congress the future question of whether and to what degree monetary damages recovery must be available against individual federal officials for unconstitutional acts.

Agreed, but as I've argued before, I think the Westfall Act is unconstitutional.  It seems unlikely that the framers would have designed a system in which our protection from abusive federal officers depends on the federal Congress.

10/27/2022

Nelson Lund: Bruen’s Preliminary Preservation of the Second Amendment
Michael Ramsey

Nelson Lund (George Mason University School of Law) has posted Bruen’s Preliminary Preservation of the Second Amendment (Federalist Society Review, forthcoming) (32 pages) on SSRN.  Here is the abstract:

New York State Rifle & Pistol Association v. Bruen confirmed that legislatures may not effectively destroy the constitutional right to bear arms by restricting its exercise to those who can persuade a government official that they have been subjected to extraordinary threats to their personal safety. This was hardly a surprise. Although the groundbreaking 2008 decision in District of Columbia v. Heller technically held only that there is a constitutional right to keep a handgun in one’s home for self-defense, the Court specifically found that the Second Amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation.” More surprising was Bruen’s decision to repudiate an overwhelming consensus of the post-Heller circuit courts about the legal tests for determining the scope of the constitutional right.

After explaining why Bruen was an easy case, and why the Court rightly rejected the circuit courts’ excessively deferential review of legislative judgments, this article argues that the alternative test announced in Bruen is unsatisfactory. Under the new test, the government must prove that any regulation covered by the Second Amendment’s text is within a historical tradition of firearm regulation that was codified in the Constitution. But the Bruen opinion itself repeatedly violates its own injunction by reaffirming naked and gratuitous ipse dixits from Heller, and by issuing new dicta supported by little or no historical evidence. If future courts are less deferential to legislatures, it will not be owing to their inability to ignore or manipulate Bruen’s text-and-history test.

The article concludes by exploring the fundamental principles found in our political tradition that justify preserving the constitutional right to keep and bear arms. Without a durable judicial consensus about the value of that right, like the established consensus about the value of the right to free speech, the Second Amendment could easily become a dead letter, as it was before Heller revived it.

10/26/2022

Rob Natelson on Legal Scholarship
Michael Ramsey

At the Independence Institute, Rob Natelson: The Cult of Advocacy: Comments on the State of Legal Scholarship—With Examples from Professor Ablavsky’s Latest Response.  From the introduction:

This posting relates some experiences from my long career writing for legal academic journals. It was triggered by Professor Gregory Ablavsky’s response to my “Cite Check” of his article, Beyond the Indian Commerce Clause (“Beyond”), and I use features of that response for some of my examples. ...

...[t]he fundamental problem addressed here goes far beyond selective quotation. It is that much—likely most—law review writing is not scholarship at all; it is advocacy in scholarly drag.

The passionate desire to “prove the case” creates incentives to engage in selective quotation. It also fosters other questionable practices: enlisting irrelevant evidence, ignoring and manipulating relevant evidence, and substituting word play for more substantial material. More rarely, you find what appears to be outright plagiarism, as I discovered recently in a law professor’s article in American University Law Review.

The cult of advocacy encourages commission of such misdemeanors, and they are further enabled by how legal academia hires law professors, defines their jobs, and operates law journals. ...

And from later on:

Law journals’ culture of advocacy has created a practice real historians decry as “law office history”—manipulating history to make a case. Two related kinds of manipulation are (1) cherry-picking evidence and (2) roaming into irrelevant fields to find more cherries to pick.

In every legal realm other than constitutional law, it is axiomatic (aside from the rare “practical construction” case) that to discover the meaning of a document you focus on the language of the document and on statements and circumstances arising before or contemporaneously with its creation. The Constitution was ratified during the period from late 1787 through early 1790. What people did or said later usually is of little value in determining what the Constitution meant to those who adopted it, when they adopted it. But in search of cherries to pick, law-office historians commonly rely on events that could not have been factored into the ratification-era understanding because they hadn’t happened yet.

...

Another way of expanding the search for cherries is to rely on actions and statements by people who were operating under very different incentives than those influencing the framers and ratifiers. [Professor Ablavsky], for example, relies on several post-ratification quotations from Secretary of War Henry Knox. “Knox was an ardent proponent of national authority,” Ablavsky writes, “Frustrated by state interference under the Articles, he read the Constitution as a grant of expansive authority.”

Well, of course he did!  Almost any federal official who sees himself as trying to get his job done will “read the Constitution as a grant of expansive authority.” Of what value, however, are self-interested, post-ratification utterances for deducing the Constitution’s actual meaning?

10/25/2022

Elias Neibart: Originalism as Intellectual History
Michael Ramsey

Recently published, in the Harvard Journal of Law and Public Policy, Elias Neibart (Harvard Law School J.D. expected 2025): Originalism as Intellectual History.  Here is the introduction (footnotes omitted):

If the majority opinions in Dobbs and Bruen taught us one thing it is that the Supreme Court’s originalist jurists remain deeply committed to the practice of history. Throughout its last term, the Court often surveyed the literature and law of the past to address modern life’s most pressing constitutional questions. So, if judges are to take on the mantle of history, what form should their historical inquiry take?

Just as different schools of jurisprudential thought produce and employ distinct methodological practices, so do the different historical camps. The Straussian, the Cambridge School adherent, and the New Left historian sometimes reach different historical conclusions, but they often utilize unique scholastic processes. These processes embody more than a myopic focus on the discrete actions and utterances of the past—they encompass the ideas, philosophies, and languages animating those events. Thus, if American jurists want to uncover rights “deeply rooted in the Nation’s history” or if they wish to determine which regulations are a part of our “historical tradition,” then they must adopt a historical method that accounts for the totality of the historical experience. This approach, therefore, would mirror that of the intellectual historian.

However, intellectual history should not be understood as an “alternative to originalism.” In fact, the opposite is true: originalism should take the form of intellectual history. Infusing originalism with the methodological practices and aims of intellectual history will create an interpretive framework that is far more robust and intellectually honest.

As he digs into the historical record, the originalist intellectual historian recognizes that the text can only be understood after first accounting for the different intellectual traditions underpinning each constitutional provision. Before attempting to ascertain the “communicative content of a legal text,” he digs deeper, unearthing the intellectual heritages undergirding the Constitution’s framework and the era in which it was created. The balance of this essay will delineate this type of originalism, but before that exploration, we should survey the current originalist landscape.

10/24/2022

Mark W. Smith on the Second Amendment and the 1791/1868 Debate
Michael Ramsey

Mark W. Smith (Ave Maria School of Law) has posted “Not all History is Created Equal”: In the Post-Bruen World, the Critical Period for Historical Analogues is when the Second Amendment was Ratified in 1791, and not 1868 (61 pages) on SSRN.  Here is the abstract:

In June of 2022, the Supreme Court decided New York State Rifle & Pistol Association, Inc. v. Bruen, which was a major victory for the constitutional right to keep and bear arms. Opponents of the Second Amendment have sought to seize upon a short passage by Justice Thomas, author of the Bruen opinion, to argue in the lower courts that an originalist interpretation requires courts to look at the meaning of the Second Amendment (and thus, logically, all provisions of the Bill of Rights) when the Fourteenth Amendment was ratified in 1868, not in 1791 when the Bill of Rights was ratified.

But 1791 vs. 1868 is not an open question. Bruen found that the text of the Second Amendment plainly covers the right to carry arms in public. It also held that “to the extent later history contradicts what the text says, the text controls.” The Bruen Court adopted the view of then-Judge Kavanaugh in a D.C. Circuit Second Amendment case that “post-ratification adoption or acceptance of laws that are inconsistent with the original meaning of the constitutional text obviously cannot overcome or alter that text.” In discussing Heller, the Bruen Court observed that Heller’s interest in mid-to-late 19th century commentary was secondary, and was considered only for the purpose of confirming rather than contradicting the Founding era understanding.

The Supreme Court has held that provisions of the Bill of Rights have only a single meaning, whether applied against the federal government or against the states. That meaning is fixed at the time of adoption; that is, in 1791. In numerous cases involving all of the amendments in the Bill of Rights that have been incorporated, the relevant time period has been held to be the Founding period. None has looked primarily to the post-Civil War period to determine the scope of a provision within the Bill of Rights. And for good reason. The Reconstruction period is unusual in American history, because the North was occupying the South with military force and the South was trying to disarm the newly freed blacks. Such actions during that period are therefore not representative of either the Founding period or of the American historical tradition as a whole. To the extent mid-to-late 19th century interpretations have been discussed in cases, it was never because the understandings of the ratifiers of the Fourteenth Amendment were found to prevail over those of the Founders in 1791. Instead, discussions of that 19th century history are treated as confirmation of the 1791 understanding.

The insistence by some scholars and advocates that 1868 should control is only of importance if they believe they can show that the 1868 understanding of the Second Amendment was different from the 1791 understanding. But if the 1868 understanding is different from that of 1791, it must be rejected because it is inconsistent with the text and the original meaning that is fixed at the time of adoption in 1791, based on the understandings of those who ratified the Second Amendment.

Not only has the Court never looked to 1868 as the primary period for determining the meaning of provisions of the Bill of Rights, its opinions generally do not even mention that period. Litigants in post-Bruen litigation have so far not pointed to a single Supreme Court case in which the Supreme Court has looked to the time of ratification of the Fourteenth Amendment as the principal period for determining the scope or meaning of a provision of the Bill of Rights.

Adoption of 1868 as the proper focus for determining the meaning of the Second Amendment would mean that the Supreme Court was utterly wrong in looking to the Founding period in Heller, Caetano, and Bruen. It would also revolutionize the Supreme Court’s entire Bill of Rights jurisprudence, which has uniformly looked to the Founding period when history needs to be consulted. The Second Amendment is not a “second class right,” so if the year of ratification of the Fourteenth Amendment were to be used to determine its meaning, then 1868 would also have to be used to ascertain the meaning of the other incorporated provisions of the Bill of Rights.

Any argument seeking to focus on the late 19th century for the purpose of interpreting the Second Amendment should be soundly rejected. The critical time period for courts to search for historical analogues to modern-day gun control laws is the Founding period (1791), and not 1868.

I agree this is a critically important question for originalism -- but I'm not sure what I think about it.  It may depend on why one thinks the Second Amendment (and other Bill of Rights rights) are incorporated into the Fourteenth Amendment.  See also this article by Mike Rappaport:  Originalism and Regulatory Takings: Why the Fifth Amendment May Not Protect Against Regulatory Takings, But the Fourteenth Amendment May; and this article by Kurt Lash: Re-Speaking the Bill of Rights: A New Doctrine of Incorporation.

10/22/2022

Not Every Lawsuit About Student Debt Cancellation Should be Cancelled
Andrew Hyman

On October 20, a federal district court in Missouri dismissed a lawsuit filed by six states that contended that President Biden’s $400 billion student debt cancellation program violates federal statutory law.  The district court said the states lacked standing, and here’s the district court's opinion.  Nina Totenberg, reporting for NPR about another failed lawsuit -- by taxpayers instead of states -- against the same loan forgiveness program, accurately wrote the following:

[T]he challengers, simply as taxpayers, could not show a personal injury as is required to bring a suit. In 2007, the Supreme Court said, "if every federal taxpayer could sue to challenge any Government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus." 

So, what’s a country supposed to do when a president allegedly tries to spend a few hundred billion dollars without congressional authorization, and the only significant alleged harm is to taxpayers?  I agree that individual taxpayers, who have only a very small amount of money at stake, do not have standing to make it a real controversy.  But it makes little sense to me that a state cannot represent the collective taxpayers as parens patriae (Latin for “parent of one’s country”), especially where the state is not seeking to void any federal statute, but rather is seeking to stop an alleged violation of a federal statute.  Back in 1923, Justice Sutherland wrote for the Court about the doctrine of parens patriae, pointing out that, where citizens have a grievance against the federal government, it’s the federal government and not the state that is in the role of parent (emphasis added):

It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois, 180 U. S. 208, 241), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status.

That makes good sense where a state would challenge the constitutionality of a federal statute, but not so much where a state would merely seek enforcement of a federal statute against an allegedly misguided federal agency or official.  Indeed, the courts have recognized this difference, according to a 2019 law review article by UVA law professors Ann Woolhandler and Michael Collins.  They wrote that the U.S.Supreme Court has:

recognized prohibitions on states’ ability to bring parens patriae suits against the federal government, [but] indicated that such prohibitions apply with lesser force where there is an allegation that an agency is not complying with federal law, as opposed to when a state tries to protect its citizens from the operation of congressional statutes.

When one parent (i.e. a federal agency) is allegedly negligent and acting against another parent (i.e. Congress), that is very different than if a state were suing both parents.  In a system of dual sovereignty it makes a great deal of sense to allow states to have some standing as parens patriae when the executive branch is purportedly disregarding the legislative branch or vice versa, especially if the matter might otherwise evade judicial review.  

I made a similar point on this blog in December of 2020, when I wrote that a state’s lawsuit in federal court, aimed at securing observance of another state’s election statutes, is far less intrusive than a lawsuit attacking the validity of that other states’ election statutes.  It makes more sense for a state to have standing in the former type of situation than in the latter (more meddlesome) type of situation.  But at least in that type of election situation, the matter could ultimately get litigated without any state as plaintiff, in contrast to this situation with the debt cancellation.

In old England, the term parens patriae referred to the monarch’s power as guardian to protect people who were under legal disabilities to act for themselves, including “infants, idiots, and lunatics” as Blackstone put it.  Taxpayers can aptly be added to Blackstone’s list given their disability to have standing in court.

10/21/2022

Chad Squitieri, Christine Chabot and Judge Trevor McFadden on Nondelegation
Michael Ramsey

From the Georgetown Center for the Constitution, video of a recent event titled "Towards Nondelegation Doctrines", featuring Christine Chabot (Loyola Chicago),  Chad Squitieri (Catholic), and Judge Trevor McFadden (U.S. District Court for the District of Columbia).

The title comes from the title of Professor Squitieri's article on nondelegation, available here.

10/20/2022

Jeremy Rabkin: Commerce with the Indian Tribes
Michael Ramsey

Jeremy Rabkin (George Mason University School of Law) has posted Commerce with the Indian Tribes: Original Meanings, Current Implications (Indiana Law Review, forthcoming 2023) (46 pages) on SSRN.  Here is the abstract:

The Supreme Court’s 2022 ruling in Oklahoma v. Castro-Huerta defies much current precedent and practice, as four dissenters protested. But neither side grappled with the Constitution’s original meaning. Both text and early practice confirm that the federal power to regulate “commerce with the Indian tribes” was a different, more constrained power than the power to regulate “commerce among the states.” But as Nineteenth Century courts recognized, federal Indian law could also draw on powers inherent in national sovereignty – a wider but not unbounded source of authority and one which necessarily excluded interference from states. Even if tribal reservations are now seen as no more independent than states, they have good claims to protection under constitutional safeguards for the free flow of commerce – rather than being treated as colonial dependents of state governments. In contrast to the conformist and assimilationist policies imposed by federal authority in the decades after the Civil War, today’s America should be more receptive to the Constitution’s original view on Indian tribes – as separate nations within the larger American nation.

This clause is getting a bit of attention -- see here and here on the debate between Robert Natelson and Gregory Ablavsky, and also here from David Kopel.

Off the top of my head, I don't see any reason to think that in terms of powers the Indian Commerce Clause means any more (or less) than the interstate commerce clause or the foreign commerce clause -- they are, actually, all part of the same clause.  Of course, other parts of the Constitution also may grant federal powers and limit state powers in managing affairs with the native tribes.  (But contra Professor Rabkin I don't think the late-nineteenth century Court's idea of inherent powers of sovereignty is a good place for an originalist to look.)