12/11/2021

John McGinnis on the Jury in Criminal Trials
Michael Ramsey

At Law & Liberty, John McGinnis: The Jury versus the Politicians.  From the introduction: 

The constitutional requirement of a jury in criminal cases represents an essential protection of our liberty, an expression of democracy, and a commitment to deciding cases based on empirical evidence. It is not only a fundamental feature of America, but a celebration of the values of the Enlightenment that trusts in evidence and the collective wisdom of people disciplined by rules to sift through that evidence. At a time when the values of both our Founding and the Enlightenment are under attack, it should not be surprising that even the highest officials in our nation do not give the jury its proper respect, and that our culture, particularly our media culture, makes it harder for the jury to flourish.

...

The Sixth Amendment’s right to a criminal jury reflected the experience of those who wrote it. The revolutionary generation keenly recalled that the jury had restrained the injustice of the Crown’s centralized authority, most notably when a jury had acquitted Peter Zenger for seditious libel brought by the administration of the governor of New York. The jury thus was originally celebrated as a popular institution that restrained undemocratic authorityat that time the rule of colonial governors appointed by the Crown. But the Framers, who ensured that the law would be made and enforced through democratic mechanisms, retained an important role for the jury in the Republic as additional protection for liberty and a mediating institution between the individual and the state. 

In that new democratic context, the jury is distinguished from the legislature and the executive not so much by its popular nature, but by features that allow the jury better to approximate spontaneous order of civic society than more top-down institutions of democracy—institutions that, as the comments of our current leaders demonstrate, are liable to demagoguery and pandering. First, the jury is sensitive to the nuances of local values because it is drawn from the local community. Second, while the jury is, like democracy, an institution directly dependent on the people, it does not typically face the process defects such as the leverage of special interests and the rational apathy of citizens that beset centralized mass democracy.

In contrast to more centralized democratic institutions, the jury focuses the attention of a set of citizens on a specific purpose. Because of this design, the jury has the opportunity to inject social norms that bubble up from below into the laws that are themselves made in a more top-down manner. ...

Thus, through thousands of decisions each year, the jury infuses local and focused evaluation of evidence into the laws made by more distant institutions, less subject to the control of a politically inattentive citizenry. For similar reasons, Tocqueville himself celebrated juries as a kind of government-assembled civic association. He noted that it placed the “real direction of society in the hands of the governed . . . and not in that of the government.” He specifically noted that it “contributes powerfully to form the judgment and increase the natural intelligence of a people.”

Agreed, and along these lines, criminal juries can be a popular check on elite opinion and rule in a way that judge-only trials would not be.  We have seen judges become increasingly politicized and captured by elite opinion.  The criminal jury. for all its flaws, retains an element of citizen self-rule in an age of elites, as it was designed to do.

12/10/2021

A Sharp Exchange on Blackstone, Removal Power, and the Scholars' Brief in Seila Law v. CFPB
Michael Ramsey

Jed Shugerman (Fordham) has posted Removal of Context: Blackstone, Limited Monarchy, and the Limits of Unitary Originalism (Yale Journal of Law and the Humanities, Vol. 32, 2022, forthcoming) (36 pages) on SSRN.  Here is the abstract: 

This article is part of a series on Article II, questioning the unitary theory’s three pillars: the Executive Vesting Clause, the Take Care Clause (or the “Faithful Execution” clauses), and the Decision of 1789 (or more accurately, the Indecisions of 1789). “Removal of Context” focuses on the “executive power” part of the Vesting Clause: Did “executive power” imply supervision and removal in the eighteenth century? What do the unitary theorists cite to support their claim that “executive power” includes removal, and “indefeasibly” so?

Unitary executive theorists’ reliance [ed.: I think he means "theorists rely"] on the English Crown in the seventeenth and eighteenth centuries, but they overlook or obscure the problems of relying on England’s limited monarchy, the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. There appears to be no evidence that executive removal was ever conceived as a “royal prerogative” at all, and the historical record indicates that the king did not have a general removal power at pleasure. The structure of the historical comparison has a major flaw: They concede that the Constitution explicitly limits many core royal powers, such war, peace (treaties), and the veto, so that the president is weaker than the king, but somehow Article II implies unnamed “executive powers” (like removal) that make a president stronger than a king? Moreover, there were eighteenth-century royal prerogatives related to law execution (prorogue and dissolution), but no one claims Article II “executive power” implies them.

When one investigates the unitary evidence more closely and follows their sources, one finds a pattern of misinterpreting historical sources, especially Blackstone in amicus briefs and law review articles in the unitary executive scholarship. In particular, the recent brief by unitary scholars in Seila Law misinterprets Blackstone’s use of the word “disposing” of offices as removing, instead of dispensing or appointing (which are indicated by context and general usage) and then misquotes a passage from Blackstone, reversing his meaning from his uncertainty about the relevant law of offices to a certain positive claim about removal. These misreadings are more than just small or narrow errors. They obscure more significant points: Blackstone was fundamentally in favor of parliamentary supremacy, against “indefeasible” executive powers; and Blackstone never mentions removal as a royal prerogative or a general executive power, which is powerful counter-evidence to the unitary theorists’ assumptions. These errors are also a cautionary moment about originalist methods and the notion that originalism is more reliable or objective than other methods of interpretation.

Professor Shugerman has related posts at his blog, here, here and here.

Ilan Wurman (Arizona State), the principal author of the originalist scholars’ brief in Seila Law that Professor Shugerman sharply criticizes, has this response at the Yale Journal on Regulation Notice and Comment Blog: Some Thoughts on My Seila Law Brief. From the introduction:

Jed Shugerman has just posted a short paper, “Removal of Context,” and a series of short blog posts, in which he takes on originalists for misusing Blackstone passages in the removal power debates. Although Jed takes on a number of other scholars, too, he cites my amicus brief in Seila Law as an example of misuse, as well as a footnote in a longer law review article that I published in the Duke Law Journal in 2020. I think Jed’s paper is helpful and originalists should (of course) change their views in light of countervailing evidence, so I wanted to address Jed’s claims.

In a footnote in [the Duke Law Journal] piece I relied on a passage from Blackstone, and in my Seila Law brief, for which I was the lead drafter on behalf of a number of other scholars, I relied on that and another passage from Blackstone, both of which Jed argues I misused. I am not so sure about the first passage, although I grant the matter is less clear than I originally believed. As for the second, I think Jed is right that I read too much into the passage. I don’t think the error changes any substantive conclusions, but I think it’s important to correct the record.

And in conclusion:

… I do not think that changes the substantive outcome or the analysis in the brief. We ourselves admitted in the brief that Blackstone is largely silent on the question of removals. We argued that as a historical matter the monarch did in fact have a removal power (which King George III exercised). That is precisely why Parliament had to enact various statutes in order to limit this power, as it did with judges in the Act of Settlement. Moreover, other passages from Blackstone regarding the need for unity in the executive and the due subordination of all other magistrates, and his passage that “the law supposes, that no one can be so good a judge of their several merits and services, as the king himself who employs them,” strongly imply such a power, too. What’s more, nothing in Blackstone suggests that once the monarch “disposes” of an office, the monarch cannot do so again through a new appointment. Still, in the brief, I did assume that the word “dispose” itself was indicative of a removal power, and I now recognize that I made a mistake by reading too much into the passage.

In any event, I am not persuaded that the brief’s central claim about English law and practice relating to the king’s removal power is incorrect, or even materially in doubt. Jed so far hasn’t pointed to specific evidence to the contrary, and I have responded to the historical arguments of Daniel Birk and others in my Duke piece. But I look forward to continuing to read Jed’s scholarship on these issues.

Professor Shugerman then has some further followup posts on his blog here, here and here.

I joined Professor Wurman’s brief in Seila Law and assisted in drafting it, so I have something of a stake in this debate.  I hope to have more to say later.  As to the Blackstone quotes, for now I’ll just say that I thank Professor Shugerman for raising questions about them, and I think Professor Wurman gives an appropriate response.

The more significant question in my view is the state of removal power in eighteenth-century English law (or, rather, how the founding generation in American understood that power).  Of course, the U.S. Constitution does not necessarily adopt the English practice on removal, because the Constitution reflects different ideas about separation of powers and in at least some other respects it quite obviously departs from English practice.  Nonetheless, English practice is relevant in addressing the question whether the Constitution adopted a unified executive power.  If the English executive had broad removal power over executive offices, that tends to support (though doesn't prove) the idea that the Constitution's executive power encompasses removal power.  And if the English executive did not have broad removal power, that suggests (but doesn't prove) the opposite.  

In one of his later posts, Professor Shugerman says that he has pointed to contrary historical evidence, citing G.E. Aylmer’s The King’s Servants (which he discusses in the post and in the longer article) and Jane Manners & Lev Menand, The Three Permissions: Presidential Removal and the Statutory Limits on Independence, Columbia L. Rev. 2020) (which he discusses in the longer article).  This, then, seems to be the key point of disagreement.

I confess that I had always assumed the English monarch had broad removal power over executive officers, and I think that this has been a common assumption.  Professor Shugerman is surely right to challenge it (though I wish he would do it in a less snarky way).  Again, I hope to have more to say upon further consideration, as is appropriate in an academic debate.

12/09/2021

Richard Epstein and Mario Loyola on Chevron Deference and American Hospital Association v. Becerra
Michael Ramsey

In the Wall Street Journal, Ricahrd Epstein and Mario Loyola: The Supreme Court’s Chance to Rein In the Regulatory State (discussing American Hospital Association v. Becerra, argued 11/30/21).  From the introduction: 

The Supreme Court heard oral argument last week in a technical case that could have major implications for American government. American Hospital Association v. Becerra involves Medicare drug reimbursement schedules to hospitals. It presents the Court with an opportunity to revisit its landmark 1984 decision in Chevron v. Natural Resources Defense Council, a major milestone in the rise of the administrative state. Chevron ushered in a perilous era of judicial deference to agency interpretations of laws deemed “ambiguous,” often by judges who think that no text is clear.

And from later on:

The Constitution gives federal courts the power to interpret federal statutes. This principle, which is vital for ensuring that Congress and the executive branch comply with the law, is confirmed by the 1946 Administrative Procedure Act, which explicitly provides in Section 706 that in reviewing an agency’s action, courts “shall decide all relevant questions of law” and “interpret constitutional and statutory provisions” de novo—from scratch.

The court in Chevron never cited Section 706. Instead, it invented out of whole cloth a “two-step” rule for reviewing agency interpretations of law: First, courts are to give effect to the “unambiguously expressed intent of Congress.” Second, if a court finds that the statute is ambiguous, as courts too frequently do, then it is bound to respect any plausible agency interpretation.

In conclusion: 

Agencies aren’t impartial participants in these cases but have an interest in interpreting the law in ways that expand their powers. Last week Justice Gorsuch sounded exasperated by yet another example of the “government’s seeking deference for a rule that advantages it.” He seemed sympathetic to Justice Amy Coney Barrett’s observation that AHA presented a “classical problem of statutory interpretation that a court should resolve” without judicial deference. Justices Clarence Thomas and Samuel Alito both bluntly asked if Chevron should be overruled.

Chipping away at Chevron won’t by itself solve the larger problem in the rise of the administrative state, which as James Madison warned, is that “the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny.” But curbing abuses in agency rulemaking by returning to the Administrative Procedure Act would be a good start.

Perhaps it is Chevron, not Roe v. Wade, that is in greater danger of being overruled.

12/08/2021

Originalism and a Constitutional Prohibition on Abortion
Michael Ramsey

Among the harshest criticisms of originalism is that it is a mere cover for judges enacting the policy preferences of the conservative legal movement.  For example, Paul Waldman makes this claim in the Washington Post, in the context of Dobbs, the pending abortion case.  He concludes:

It was all a lie, a scam, a con: the assurances that they [the Supreme Court nominees] were blank slates committed to “originalism” and “textualism,” that they wouldn’t “legislate from the bench,” that they have no agenda but merely a “judicial philosophy.”

Somehow that philosophy nearly always produces results conservatives want ...

But the abortion case actually shows the opposite of Waldman's claim.  The conservative legal movement doesn't want just to overturn Roe; it (or at least part that cares most about the issue) wants to outlaw abortion.  In Dobbs, though, at most the Court may merely withdraw the constitutional bar on abortion restrictions so that the question can be resolved by the political branches. 

Why not do more?  Why wouldn't the Court rule that states that permit abortion violate the Constitution?  If the conservative Court really believes it can "legislate from the bench" to "produce[ ] results conservatives want," isn't that the outcome we would expect?

Surely the Constitution can accommodate that conclusion.  As many on the left have argued, the Constitution's due process and equal protection clauses are open-ended and can be read to appeal to broad principles to be applied in light of contemporary morality and policy.  If, as anti-abortion conservatives believe, human life begins at conception or some point near to it, an aggressive living-constitutionalist conservative could find in those clauses a protection for unborn life.  Far less plausible claims have been made and accepted by courts on behalf of the policies of the left.

The conservative originalist Justices on the Court are not going to rule this way, and Justice Scalia -- as firmly anti-abortion as anyone -- never considered it.  The reason is originalism.  Though a few scholars have argued to the contrary, the overwhelming mainstream originalist position, among both scholars and judges, is that the Constitution's original meaning does not protect unborn life.  (See here from Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion.)  It is the Justices' commitment to originalism and textualism that prevents them from legislating from the bench to achieve conservative policy goals in the abortion debate.  (And originalism is criticized by some conservatives on this ground.)

Left-leaning commentators like Paul Waldman entirely miss this point because they don't understand where conservative living constitutionalism, unconstrained by originalism, might go.  Originalism isn't a cover for conservative judicial legislation; it's a check on conservative judicial legislation.  

UPDATE:  Proving the point, at the anti-originalist blog Ius & Iustitium: The End of Originalism (arguing that originalism is an inadequate judicial philosophy because it stands in the way of a moral reading of the Constitution that would, among other things, find abortion unconstitutional).

(Via Stephen Sachs at Volokh Conspiracy, who has a lengthy response: Originalism and "Might Makes Right": The moral case for positive law.)

12/07/2021

Josh Blackman on Lower Court Originalism from Judge James Ho
Michael Ramsey

At Volokh Conspiracy, Josh Blackman, Originalism and Textualism in the Lower Courts: Judge Ho's Concurrence in Homeland Insurance Co.  From the introduction:

Last week, the Fifth Circuit decided Williams v. Homeland Ins. Co. of New York. The case involved a fairly complicated, and long-running dispute against the insurance company. Here, a divided panel found that the district court lacked diversity jurisdiction.

Judge Ho wrote a concurrence. In this case, he identified "a conflict between text and precedent." In such a clash, Ho wrote, courts "should maximize the former—and minimize the latter." Ho then explained how lower court judges should balance textualism and stare decisis. In short, circuit judges should not support the extension of precedents unless the text supports that extension. This principle applies equally to questions about the original meaning of the Constitution. Other judges should include this string cite when developing lower-court originalism:

"[J]udges swear an oath to uphold the Constitution, consistent of course with a judicial system based on precedent. That should mean that we decide every case faithful to the text and original understanding of the Constitution, to the maximum extent permitted by a faithful reading of binding precedent." Texas v. Rettig, 993 F.3d 408, 409 (5th Cir. 2021) (Ho, J., dissenting from denial of rehearing en banc). "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: 'Our duty is to apply the Constitution—not extend precedent.'" Id. at 417 (quoting 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)) (cleaned up). [FN1]

[FN1] See alsoe.g.Williams v. Taylor-Seidenbach, Inc., 958 F.3d 341, 350 (5th Cir. 2020) (en banc) (Ho, J., concurring) (judges should follow legal texts "to the maximum extent that Supreme Court precedent permits") (citing Alvarez v. City of Brownsville, 904 F.3d 382, 401 (5th Cir. 2018) (en banc) (Ho, J., concurring)); Preterm-Cleveland v. McCloud, 994 F.3d 512, 543 (6th Cir. 2021) (en banc) (Bush, J., concurring) (same); Edmo v. Corizon, Inc., 949 F.3d 489, 506 (9th Cir. 2020) (Bumatay, J., dissenting from denial of rehearing en banc) (same); United States v. Johnson, 921 F.3d 991, 1010 (11th Cir. 2019) (en banc) (Jordan, J., dissenting) (when it comes to precedent with a "shaky originalist foundation . . . there is always the option of declining to broaden it—of refusing to extend it one inch beyond its previous contours"); People v. Mathews, 943 N.W.2d 636, 645 (Mich. 2020) (Viviano, J., dissenting) (judges should not extend precedent "unless the extension is required by the Constitution's original meaning"); see generally Josh Blackman, Originalism and Stare Decisis in the Lower Courts, 13 NYU J.L. & LIBERTY 44, 51 (2019) ("[A] judge should only extend a Supreme Court precedent if the original meaning of the Constitution can support that extension.").  

RELATED:  My recent post Judge Bumatay on Originalism and the Second Amendment (discussing Judge Bumatay's  originalist dissent from the Ninth Circuit's en banc ruling in Duncan v. Bonta).

 

12/06/2021

Legal Theory Lexicon on Formalism and Instrumentalism
Michael Ramsey

At Larry Solum's Legal Theory Lexicon: Formalism and Instrumentalism.  From the description of formalism: 

The core idea of formalism is that the law (constitutions, statutes, regulations, rules of procedure, and precedent) provide rules and that these rules can, do, and should provide a public standard for what is lawful (or not).

That is, the core of legal formalism entails a commitment to a set of ideas that more or less includes the following:

1. The law consists (at least in part) of rules that are derived from the linguistic meaning (or communicative content) of authoritative legal texts.

2. Legal rules can be applied to particular facts.

3. Some actions accord with meaningful legal rules; other actions do not.

4. The standard for what constitutes following a rule (or not) can be publicly knowable and the focus of intersubjective agreement.

Contemporary legal formalism is particularly prominent in two areas, constitutional law and statutory interpretation. In constitutional law, formalism is associated with “originalism,” the view that the constitution should be interpreted in accord with its “original meaning.” In statutory interpretation, formalism is associated with the “plain meaning” theory—that statutes should be interpreted so that the words and phrases have their ordinary meaning. Plain meaning approaches are also associated with the view that legislative history should not be used, especially if it would result in an interpretation that differs from the text of the statute.  Of course, plain-meaning theories of statutory interpretation could (and should) adopt the originalist thesis that "meaning" (or "plain meaning") is fixed at the time the text is drafted and promulgated.

Agreed, although I would clarify (a) that "plain" meaning is not literal meaning abstracted from context, but rather takes context into account [I know Professor Solum agrees], and (b) that at least in my view, "ordinary meaning" can and indeed often does have a specialized legal meaning derived from its context [I'm less sure Professor Solum agrees].

On instrumentalism:

Legal instrumentalism is one of the ideas that are strongly associated with American legal realism—the great movement in legal thought that is usually associated with Oliver Wendell Holmes, Jr.—as a sort of parent—and with figures like Roscoe Pound, Karl Llewellyn, Felix Cohen, and Jerome Frank. Like formalism, instrumentalism is often ill defined, but most instrumentalists would agree on the idea that legal rules should be interpreted in light of their purposes. When applying the letter of the law would undermine its purpose, then the rule should be interpreted so that it does not apply. And likewise, if the spirit of the law would be served by its application, then judges should give the rule an expansive interpretation. Some instrumentalists may go beyond this, and argue that judges should sometimes nullify statutes that are bad policy or create judge-made rules, when that would serve the ends of good policymaking.

I think my quick definition of instrumentalism would be something like interpreting statutes to reach good policy results wherever fairly possible, at least where the text is not crystal clear, and sometimes even when it is.

12/05/2021

Judge Bumatay on Originalism and the Second Amendment
Michael Ramsey

A strongly originalist opinion from Judge Patrick Bumatay (9th Circuit, San Diego), dissenting from the court's en banc ruling in Duncan v. Bonta, filed last week.  The issue was whether California's ban on "large-capacity" (more than 10 round) magazines violates the Second Amendment; the majority, applying intermediate scrutiny, found it did not.  From Judge Bumatay's dissent (footnotes and some citations omitted):

Contrary to the majority’s reiteration of a tiers-of scrutiny, sliding scale approach, Heller commands that we interpret the scope of the Second Amendment right in light of its text, history, and tradition. That’s because constitutional rights “are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.” Heller, 554 U.S. at 634–35.

Heller announced a straightforward analytical framework that we are not free to ignore ...

Rather than rely on our own sense of what is the right balance of freedom and government restraint, then, the Court instructs lower courts to follow the meaning of the People’s law as understood at the time it was enacted. Such an approach is more determinate and “much less subjective” because “it depends upon a body of evidence susceptible of reasoned analysis rather than a variety of vague ethicopolitical First Principles whose combined conclusion can be found to point in any direction the judges favor.” McDonald, 561 U.S. at 804 (Scalia, J., concurring).

Far from obscuring the decision-making process, as Judge Berzon’s concurrence contends, applying the text, history, and tradition approach forces judges to put their cards on the table. It sets out the ground rules under which constitutional decision-making is made. It ensures that only proper sources, datapoints, and considerations are used to determine the scope of the Second Amendment right.

Adopting this approach necessarily constrains judges to the text and the historical record rather than to their own policy preferences. To be sure, no mode of judicial decisionmaking is perfect or can eliminate discretionary calls, but relying on a historical methodology provides discernible rules that “hedge[]” discretion and expose the “misuse of these rules by a crafty or willful judge” as “an abuse of power.” Even if the method requires complicated historical research or interpretative choices, the text, history, and tradition approach offers a common ground to criticize a judge who glosses over the text or misreads history or tradition. Otherwise, we are left with the majority’s approach which all too often allows judges to simply pick the policies they like with no clear guardrails.

Moreover, contrary to Judge Berzon’s portrayal, the fact that “[w]ords do not have inherent meaning” is a feature—not a bug—of Heller’s text-based approach.  We agree that the meaning of words may evolve over time. But enumerated rights do not. The People ratified the Second Amendment in 1791 to protect an enduring right—not one subject to the whims of future judges or the evolution of the words used to articulate the right. This view is not radical. Chief Justice Marshall expressed a similar sentiment in 1827: The Constitution’s words, he said, “are to be understood in that sense in which they are generally used by those for whom the instrument was intended; that its provisions are neither to be restricted into insignificance, nor extended to objects not comprehended in them.” Ogden v. Saunders, 25 U.S. 213, 332 (1827) (Marshall, C.J., dissenting).

Without hewing to the meaning of the right as understood at the time of enactment, we alter the rights chosen by the People and risk injecting our own policy judgments into the right’s meaning. As for Judge Berzon’s concern that the meaning of constitutional text may be “lost to the passage of time,” we have been interpreting language going back millennia. As Justice Gorsuch observed, “[j]ust ask any English professor who teaches Shakespeare or Beowulf.” Neil M. Gorsuch, A Republic, If You Can Keep It 112 (2020). Simply put, original meaning gives enduring meaning to the Constitution and preserves our rights as they were enshrined at the time of adoption.

The criticisms of history and tradition playing a role in constitutional interpretation fall equally flat.  As Heller shows, by looking to tradition and history, we see how constitutional text came to be and how the People closest to its ratification understood and practiced the right. And by examining a firearm’s history of common usage, we come to see the fundamental nature of the right and illuminate how a modern governmental regulation may infringe on a longstanding protection.

Tradition and history may also allow us to take interpretive options off the table: they might say that two possible “answers” to a legal question are permissible, which “is worth something” because courts should not “impose a third possibility.” So, tradition and history inform the meaning of constitutional rights in ways that no tier-of-scrutiny can. For sure, this approach can be difficult. Some of Judge Berzon’s process critiques are not all wrong. See Berzon Concurrence 57–58 (noting that the “volume of available historical evidence . . . will vary enormously and may often be either vast or quite sparse”). Looking to text, history, and tradition to uncover meaning takes time and careful analysis. And interpreting the meaning of documents and events from long-ago is much harder than simply consulting our own policy views. But it is the high price our Constitution demands from judges who swear an oath to apply it faithfully. Indeed, the same criticisms leveled by Judge Berzon apply with greater force to the tiers-of-scrutiny approach because there is no historical backdrop to cabin a judge’s discretion. While judges may not be historians, neither are we economists, statisticians, criminologists, psychologists, doctors, or actuarialists. But that is exactly the type of expertise judges use to render judgment under the majority’s approach. While the text, history and tradition methodology may have shortcomings, it is better than the majority’s approach. Their judicial black box leaves critics grasping to understand the court’s method for balancing policy interests. At the very least, text, history, and tradition has nothing to hide.

(With citations to  originalist scholars William Baude, Lawrence Solum, Ilan Wurman, Gary Lawson, Guy Seidman and Stephen Sachs.)

Judge Bumatay goes on to find the large-capacity magazine ban unconstitutional, applying the text, history and tradition approach.  In particular, "[l]ooking at the historical record, large-capacity magazines are clear modern-day equivalents of arms in common use by the incorporation of the Second Amendment and are, thus, entitled to constitutional protection."

(Via How Appealing.)

12/04/2021

Martin Redish & Brandon Johnson: The Underused and Overused Privileges and Immunities Clause
Michael Ramsey

Martin H. Redish (Northwestern University - Pritzker School of Law) and Brandon Johnson (JD, Northwestern, '18) have posted The Underused and Overused Privileges and Immunities Clause (Boston University Law Review, Vol. 99, No. 1535, 2019) (42 pages) on SSRN.  Here is the abstract:

In this Article, the authors argue that Article IV’s Privileges and Immunities Clause has been seriously underused due to a series of puzzling and highly dubious Supreme Court decisions imposing artificial and counterproductive limitations on the Clause’s reach. They urge that with the removal of these harmful and misguided doctrinal restrictions, the Clause would serve the important function it was intended to serve: the avoidance of interstate friction and the prevention of the degeneration of the nation’s federal system. At the same time, the authors warn against the dangerous and unsupportable efforts by libertarian scholars to misuse the doctrine growing out of this Clause’s interpretation to create a constitutional portal by which the Clause can be manipulated into a textual source of unenumerated individual rights that would seriously threaten core notions of American democracy. Careful examination of both the Clause’s constitutional text and doctrine, as well as the relevant historical context, demonstrates that the libertrian approach unjustifiably transforms a structural provision designed to deal exclusively with issues of constitutional federalism into a sweeping judicial power to create individual rights found nowhere in the Constitution’s text. It is, then, only by avoiding the doctrinal underuse and the scholarly overuse that the Privileges and Immunities Clause can serve the valuable structural role it was clearly intended to serve.

Agreed as to both propositions!

(The article is from 2019, although just posted to SSRN.  I'm linking to it now anyway, because it's an important article that may have been a bit overlooked when published).

12/03/2021

Ilya Somin on Justice Sotomayor on Marbury
Michael Ramsey

At Volokh Cospiracy, Ilya Somin: Abortion, Marbury v. Madison, and What's "Written in the Constitution".  From the introduction:

Conservative critics of Roe v. Wade have long argued that it is wrong in part because the right to abortion is nowhere written in the Constitution. Thus, it's no surprise that the issue came up in today's oral argument in Dobbs v. Jackson Women's Health Organization, the case that could lead to the overruling of Roe. Supreme Court Justice Sonia Sotomayor offered the following response, while questioning Mississippi Solicitor General Scott Stewart:

Justice Sonia Sotomayor turned to Mississippi's arguments that Roe v. Wade should be overturned because abortion rights are not explicitly laid out in the text of the Constitution.

Sotomayor noted that several key decisions – such as Marbury v. Madisonwhich established the judicial review – are not in the Constitution, nor are decisions guaranteeing the right to birth control and same-sex marriage.

"I fear none of those things are written in the Constitution," Sotomayor said. "They have all, like Marbury v. Madison, been discerned from the nature of the Constitution."

I don't agree with everything in Professor Somin's post, but I agree with every single word of these two paragraphs:

Justice Sotomayor is wrong to suggest that judicial review isn't written in the Constitution, but must be inferred from its "nature." The idea that judicial review is an atextual power that was somehow invented by John Marshall in Marbury v. Madison is a longstanding trope. But it's wrong, nonetheless. Article III of the Constitution specifically states that "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority."

The power to decide "all Cases… arising under this Constitution" necessarily includes the power to rule that state and federal laws violate the Constitution and therefore cannot be enforced. Judicial review was widely understood to exist long before Marbury, and that case was far from the first time federal courts invalidated a law because of its unconstitutionality. State courts also had a long history of judicial review, including pathbreaking decisions striking down slavery as a violation of the Massachusetts Constitution.

The claim that Marbury was atextual and non-originalist has long been used to discredit originalism and defend living constitutionalism, but there's simply no basis for it.  I would add that judicial review is plainly described and endorsed in Hamilton's Federalist 78, from which Marshall borrowed heavily without attribution.

The "widely understood" link above is to Scott Gerber's outstanding book A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press 2011).  One could also mention extensive law review treatments by William Treanor and by Saikrishna Prakash  & John Yoo.

12/02/2021

Jonathan Adler on Whether the Fourteenth Amendment Prohibits Abortion
Michael Ramsey

At Volokh Conspiracy, Jonathan Adler: Why the 14th Amendment Does Not Prohibit Abortion.  From the introduction: 

Some Pro-Life advocates ... argue not only that Roe was wrong as an original matter, but also that the Fourteenth Amendment, properly interpreted, protects unborn life and prohibits abortion. This is the argument made in this amicus brief filed in Dobbs on behalf of John Finnis and Robert George and this Finnis article in First Things. ...

Last month, I was asked to debate this question with Josh Hammer by the University of Chicago student chapter of the Federalist Society and UChicago Law Students for Life. It was a fun event in front of a packed house. The remainder of this post  (after the break) summarizes my argument for why the Fourteenth Amendment does not prohibit abortion.

In order to argue that the 14th Amendment prohibits abortion, one needs to establish two separate propositions: 1) That the unborn are "persons" within the Fourteenth Amendment; and 2) That the failure of a state to prohibit abortion constitutes a denial of either Due Process or Equal Protection. Both are necessary to sustain the argument, but in my view, the Constitution's text, structure and history do not support either. ... [extensive analysis follows].

From an originalist perspective, I entirely agree.  Among other things, to show the Fourteenth Amendment prohibited abortion when enacted, one would need to show (a) that the word "person" at the time of enactment included fetuses, and (b) state laws generally at the time categorically prohibited abortions, or there was a broad understanding that the Fourteenth Amendment would override existing state laws in this area.  I don't think either proposition can be established, for the reasons Professor Adler describes in the substantive part of his post.

I think that explains why no originalist or originalist-oriented Justice has ever shown any sympathy for the George/Finnis argument, even Justices (such as Scalia) whose personal views of abortion point strongly the other way.  Originalism does constrain originalist Justices.  It constrained Scalia to say that states could allow abortion, much as he hated that result.

It's also critical to see (as Justice Kavanaugh said in the Dobbs oral argument) that the position Mississippi takes in Dobbs is an intermediate position -- that the question of abortion should be left to the states.  One can argue, with Professors George and Finnis, that the Justices should take that question away from the states and declare statutes permitting abortion to be unconstitutional.  I agree with Professor Adler (and Justices Scalia and Thomas) that originalism does not permit that result.  

But for a living constitution analysis ... I suppose it depends on who the Justices are.  Take away originalism, and I don't see why conservative Justices who find abortion objectionable on policy/moral grounds should not also find it unconstitutional.  That's the way living constitutionalism works.