John Grove Reviews Max Edling's "Perfecting the Union"
Michael Ramsey

At Law & Liberty, John G. Grove:  America's Federal Settlement (reviewing Perfecting the Union: National and State Authority in the US Constitution by Max Edling (Oxford Univ. Press 2020)).  From the introduction: 

Max Edling’s recent book, Perfecting the Union, is a succinct, valuable account of the framing of the Constitution with an eye toward the division of power between the federal and state governments. It draws heavily upon, and might even serve as a useful introduction to, the body of scholarship he refers to as the “Unionist” interpretation of the American founding. The Unionist view stresses the importance of the theory and practice of federalism to understanding both the American Revolution and the framing and adoption of the Constitution.

The Unionist view shows how central the debates over the imperial federal structure were to the American Revolution, which pitted the newly dominant paradigm of parliamentary sovereignty against the rights of colonial assemblies which had been nurtured by the metropole’s “salutary neglect.” Independence, then, brought forth on this continent a new problem: how would the thirteen “free and independent states” order their relationship with one another? What kind of federal union could capture the best parts of the old colonial arrangement—unity and strength abroad, and self-government at home—without the monarchical loyalty that had structured the old order?

The Federal Compact

Edling believes that to understand the Constitution, we have to understand the long public deliberation that took place on these questions, running from the Articles of Confederation, through the various failed attempts at reform in the 1780s, the Philadelphia convention, the state ratification conventions, and the first Congress. The upshot of Edling’s account is that the Constitutional convention was prompted almost entirely by concerns about international and interstate relations, and the document therefore produced a national government that possessed authority almost entirely limited to these areas. This limited remit was a direct holdover from the Articles, which had envisioned a firm union of states that could act confidently as a single unit on the world stage without giving up the states’ individual independence and self-government at home. That hope, however, had been threatened by several distinct problems with the Articles. Most importantly, the lack of a taxing power limited the United States’ ability to protect its basic interests and take up an equal station on the world stage with European powers. Almost as important were the growing conflicts between states arising over economic tensions, with no means of independent resolution.

The Constitution’s enhanced powers, then, were narrowly aimed at rectifying these and other problems. The establishment of a more autonomous governing structure was a side effect—a necessity for a government empowered to address these problems. It did not signify the establishment of a “polity that gave the central government precedence over the states” but merely ensured that each level of the government was fully capable of successfully carrying out the tasks it was assigned. The Constitution, therefore, “transformed the structure of the American union . . . but it did not transform the fundamental purpose of the union, which remained a political organization designed to manage the relations between the American states, on the one hand, and between the American states and foreign powers, on the other.”

And from the conclusion:

Edling’s account is, for the most part, a convincing and useful corrective to nationalist understandings of the Constitution and its context. It is missing an important element, however: a systematic account of sovereignty and its relationship between the people, states, and the federal government. Much confusion can ensue when the distinction in the founding era between an ultimate “sovereignty” and “government power” is blurred. ...

Edling is almost entirely focused on the division of governmental authority, not ultimate popular sovereignty, and the book does not run into many problems on account of this distinction. But he does occasionally allude to matters that cannot be understood without it. For instance, he says at one point that “The authority of the Constitution rested on popular sovereignty whereas the Articles of Confederation had been an agreement between the states,” but elsewhere he calls the constitution a “plan of union between sovereign republics” and a “compact between states” He also refers to the states voluntarily “circumscribing their sovereignty.” There are not necessarily any contradictions to be had here, but a thorough presentation of the distinction and the use of more precise terminology could help for a more complete picture. On this point, readers will find a more thorough account in Aaron Coleman’s The American Revolution, State Sovereignty, and the American Constitutional Settlement, 1765-1800.

Though one cannot fault a short study for failing to look at every implication, the book is also lacking much by way of assessment of the plausibility of this division of power. Anti-Federalists, of course, did not believe such a balance of federal and state power could reasonably be struck and maintained. Give to the central government the sword, the purse, and the authority to interpret its own limits, and it will eventually use whatever pretense it can find to arrogate to itself supreme authority in all areas. Even in the early republic, the lines between foreign and domestic policy, and especially between intra- and interstate commerce were blurry. They are even more so now. On this point, at least, does subsequent American political development provide the inevitable vindication of the Anti-Federalists?


Gerard Magliocca on Chief Justice Marshall on the Necessary and Proper Clause
Michael Ramsey

At Balkinization, Gerard Maggliocca (Indiana): An Alternative Test for the Necessary and Proper Clause.  Professor Magliocca notes this comment from Chief Justice Marshall (in his biography of George Washington): 

In asserting the authority of the legislature to pass the bill, gentlemen contended, that incidental as well as express powers must necessarily belong to every government: and that, when a power is delegated to effect particular objects, all the known and usual means of effecting them, must pass as incidental to it. To remove all doubt on this subject, the constitution of the United States had recognized the principle, by enabling congress to make all laws which may be necessary and proper for carrying into execution the powers vested in the government. They maintained the sound construction of this grant to be a recognition of an authority in the national legislature, to employ all the known and usual means for executing the powers vested in the government. Then they took a comprehensive view of those powers, and contended that a bank was a known and usual instrument by which several of them were exercised.

Thus he (Magliocca) finds in Marshall's quote an alternative test for necessary and proper: that the implied power claimed by Congress under the clause be a "known and usual means" for carrying into execution an enumerated power.  In conclusion:

I think that "known and usual means" is a more helpful test for analyzing incidental powers (especially in light of over two centuries of practice) than the more typical formulations. 

For example, the thrust of the Chief Justice's opinion in Sebelius was that a mandate to buy health insurance was unusual--it was not a "known and usual means" for exercising the commerce power. The same could be said for a federal vaccination mandate on private employers, if you assume that OSHA even has that power under the relevant statute. And so on.


Joseph Blocher & Mitu Gulati: Property, Sovereignty, and the Law of the Territories
Michael Ramsey

Joseph Blocher (Duke University School of Law) and Mitu Gulati (University of Virginia School of Law) have posted Navassa: Property, Sovereignty, and the Law of the Territories (Yale Law Journal, forthcoming) (52 pages) on SSRN.  Here is the abstract:

The United States acquired its first overseas territory—the island of Navassa, near Haiti—by conceptualizing it as a kind of property to be owned, rather than a piece of sovereign territory to be governed. The story of Navassa shows how competing conceptions of property and sovereignty are an important and underappreciated part of the history of the law of the territories—a story that continued 50 years later in the Insular Cases, which described Puerto Rico as “belonging to” but not “part of” the United States. Modern scholars are drawn to the sovereignty framework and the public-law tools that come along with it: arguments about rights, citizenship, and self-determination. But the property framework, and accompanying private-law tools, can also play an important role in understanding and dismantling the existing colonial structure.

Via Larry Solum at Legal Theory Blog, who says: "I had not known about the Guano Islands Act!  Highly recommended.    Download it while it's hot!"

As perhaps suggested by earlier posts, I have some doubts about the constitutionality of the Guano Islands Act.  But I would not want to start that debate over again.


John McGinnis Reviews Justice Breyer's "The Authority of the Court and the Perils of Politics"
Michael Ramsey

At Law & Liberty, John McGinnis, The Pitfalls of Justice Breyer’s Rambling Consequentialism (reviewing Justice Breyer's book The Authority of the Court and the Perils of Politics (Harvard University Press 2021)).  From the introduction:

... Given that the Supreme Court has no effective power to enforce its judgments, what makes other political actors respect the decisions of the Court? As Breyer notes at the beginning [of the book], the question of why we obey the law goes back to ancient times. Cicero provided three possible answers for legal obedience: fear of punishment, hope of rewards, or the perception that the law is just.

But Breyer never concisely answers the question of why Americans demand that their leaders obey the decisions of the Supreme Court in particular cases, even as they and their leaders frequently disagree with those decisions. He consistently observes that Americans have over time acquired a habit of obedience. But that answer just raises the question of what inculcated that habit and what will perpetuate it.

A brief approximation of Breyer’s answer is the courts will inculcate habits of obedience if they are not regarded as “political.” This conclusion is not original, but it is in a sense originalist. In Federalist 78, Alexander Hamilton argued that the Supreme Court was the branch most fitted for constitutional review because it did not act through “will” (read politics) but judgment. That capacity for dispassionate judgment unaffected by the kind of politics that motivates elected officials provides the Court’s advantage over the other branches of government in maintaining the constitutional order. According to Breyer, Americans will keep obeying the Supreme Court so long as they by and large agree with Hamilton’s claims.

And from later on:

The greatest failing of the book is that he does not consider at all how jurisprudence bears on the political appearance of the Court. At one point he says that he does not want to get into jurisprudential debates, but he clearly lays out his own—one that eschews adherence to an originalist parsing of text in favor of broad values, like democracy or equality, that he claims animate the constitution as well as focusing on the consequences of the Court’s decisions.

But it is precisely this kind of jurisprudence that makes the justices seem like politicians in robes and that is likely to undermine the public’s perception of their comparative advantage [of non-partisanship]. Politicians also claim their policies will advance broad values like democracy and equality. They make claims for the beneficial consequences of their policies. Whatever else may be said about originalism, its careful attention to the meaning of an old text and complex legal rules for interpreting it do not have any resemblance to a stump speech.

In Federalist 78, Alexander Hamilton noted this difference in method while defending judicial review: “To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” By precedents, Hamilton here likely means precedents on methods of textual interpretation. His discussion of judicial method does not resemble at all Breyer’s emphasis on values and consequences.


Taxation by International Consent?
Michael Ramsey

Recently I participated in a Federalist Society webinar titled Taxation by International Consent?, along with tax attorney Joshua Wu (Latham & Watkins) and political scientist Stephen Krasner (Stanford), moderated by Jeremy Rabkin (George Mason/Scalia).  Here is the description:

Finance ministers from leading industrial states have been trying, this summer, to work out an agreement on a minimum rate for corporate taxes.  Does it matter that this agreement won’t be adopted by the constitutional procedure for making treaties?  Will it still matter, by itself, to U.S. tax law and tax enforcement?  Should we expect other nations to abide by an agreement of this kind?

As I don't know anything about tax, my role was to talk about the constitutional and international law aspects of international agreements.  In short, my view of the global minimum corporate tax agreement is that it will be done as nonbinding agreement, which I think is within the President's executive power.  It would not infringe the treaty power because a treaty is necessarily a binding agreement under the international law definition of the founding era.  As I put it in Evading the Treaty Power

The word “treaty” in the Constitution indicates a binding agreement under international law. Vattel, the leading international law writer of the eighteenth century, wrote: “He who violates his treaties, violates at the same time the law of nations; for, he disregards the faith of treaties,—that faith which the law of nations declares sacred.” Americans of the founding era were concerned that treaty violations would impugn the nation’s honor (an important consideration at the time) and more practically would give cause for war at a time when the United States was a weak nation militarily. In discussing the importance of treaties, members of the founding generation consistently referred to treaties’ binding nature. For constitutional purposes, therefore, an essential element of a treaty is that it is binding as a matter of international law.

Nonbinding agreements are necessarily not treaties, because (by definition) they lack the essential characteristic of bindingness and therefore lack the corresponding implications for preserving honor and not giving offense. A nonbinding agreement is in effect a statement of policy (or rather multiple parallel statements of policy) which the relevant parties understand can be changed unilaterally in any party’s discretion. Because a nonbinding agreement is not a treaty and does not implicate the concerns of a binding commitment, the treaty-making clause is not relevant to its constitutional status. Put precisely, the treaty-making clause does not preclude the President from making nonbinding agreements.

Of course, the President must point to an affirmative source of the power to make nonbinding agreements, and since the Constitution does not mention them expressly, that must be found in some other source of power. ... [T]he theory of executive foreign affairs power holds that the vesting of “executive Power” with the President in Article II, Section 1,includes foreign affairs powers not specifically granted to other entities by the Constitution. Under this approach, diplomacy and the management of foreign affairs are powers of the President, and those powers would likely include a general constitutional power to make nonbinding agreements.

But (as I say on the webinar), the consequence of proceeding via a nonbinding agreement is that the agreement is not part of international law or U.S. domestic law.  It isn't part of "supreme Law of the Land" under the supremacy clause; it doesn't impose any obligation on Congress to enact it; it can be rejected or ignored by a subsequent President, or even by the current President if he changes his mind.  It's really just a joint statement of policy (and thus belongs more in Professor Kranser's domain than mine).

An interesting question (but an entirely academic one given the composition of the Senate) is whether a global minimum tax constitutionally could be adopted by treaty.  The argument against it would be that Article I, Section 7 says that "[A]ll Bills for raising Revenue shall originate in the House of Representatives."  A treaty isn't a "Bill," of course, but perhaps the origination clause implies that the House has an exclusive power to initiate tax-raising measures.  There are, however, many tax treaties in existence, principally aimed at avoiding double taxation; it's not clear if they are distinguishable.

Another possibility we discuss is adopting a global minimum tax by congressional-executive agreement.  In theory, the President could work through the Organisation for Economic Co-operation and Development (OECD), where the discussions have been ongoing, to develop a model agreement, and then present the agreement to Congress for approval by simple majorities in both Houses.  I think congressional-executive agreements are probably unconstitutional under the Constitution's original meaning (because unlike nonbinding agreements they do infringe the treaty power), but they are well established in modern practice in some areas (but not tax).  Our assessment is that in any event Congress isn't likely to cede control of the development of the minimum tax rules (which likely will need to be quite complex) to the President, and so a congressional-executive agreement in the nature of ones used in the international trade area is unlikely for tax.


Lawrence Solum on Textualism [Update with Further Thoughts]
Michael Ramsey

At Larry Solum's Legal Theory Blog, an updated entry in the Legal Theory Lexicon: Textualism.  From the introduction:

One of the most important topics in legal theory is “legal interpretation,” which deals with the derivation of meaning from legal texts. Of course, legal interpretation is a very large topic, with several different dimensions and approaches. This post will focus on “textualism,” and provide some introductory ideas about interpretive theory in general. ... 


Let’s begin with a basic question: what do we mean when we say “the plain meaning of the text.” A really good answer to that question would require us to develop a theory of meaning in general, but we must avoid that enterprise--at least for the purposes of this post. At one level, the idea of plain meaning is pretty simple. The plain meaning of a legal text is the meaning that would be understood by regular folks who were competent speakers of the language and who knew that they were reading a statute (or court decision, etc.).

But this preliminary formulation is too simple. Some laws are meant for all citizens (e.g., criminal statutes) and some are meant only for specialists (e.g., some sections of the tax code). A text that means one thing in a legal context, might mean something else if it were in a technical manual or a novel. So the plain meaning of a legal text is something like the meaning that would be understood by competent speakers of the natural language in which the text was written who are within the intended readership of the text and who understand that the text is a legal text of a certain type. 

What "Plain Meaning" Is Not

Another way to understand plain meaning is to contrast this idea with others.  Here are some:

  • Literal Meaning.  The literal meaning of a text is provided by its semantic content alone, with no consideration of context.  Literal meaning is sparser than plain meaning, because the conventional semantic meaning of many words and phrases is very sparse, with contextual disambiguation or precisification enriching the plain meaning.
  • Purposive Meaning.  Sometimes we use the word "meaning" to represent the purpose for which a text was written.  Purposive interpretation is a rival of textualism.
  • Reasonable Meaning:  The plain meaning of a text may not be the best meaning (from the perspective of some policy goal or normative theory).  The plain meaning of a text may not be the "reasonable"or "desirable" meaning.

The distinction between textualism and what Professor Solum calls "Literal meaning" seems particularly important, and it's often ignored by critics of textualism (and sometimes even proponents).  Textualism embraces context as a necessary way to understand text.  See my discussion here (in Part II).

FURTHER THOUGHTS:  On reflection, I think I don't agree with Professor Solum's description of "plain meaning,"  As I understand the above passage (though I may be misreading it), he's saying that the "plain meaning" includes "contextual disambiguation or precisification." (I'll just call it context).  If that's so, I don't see what the word "plain" adds.  It's just the meaning of the text, as understood in context.

Instead, I think of "plain meaning" as what he calls "literal meaning."  It's what appears on the face of the text, before considering context. Sometimes it's sufficiently clear that it settles the meaning.  Sometimes it isn't, so textualists turn to context to clarify otherwise unclear text (and to be sure that what appears to be the literal meaning is in fact the true meaning).

Put this way, I would say that textualists do not limit themselves to the "plain meaning" because they do look at context.  Sometimes the text's meaning isn't plain, but is still discernible using context.


The Issue of Birthright Citizenship in U.S. Territories is Closely Linked to the Issue of Illegal Immigration
Andrew Hyman

Michael Ramsey and I have had a spirited discussion here on this blog about the first sentence of the Fourteenth Amendment, which says: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside."  Essentially, Mike has argued that there is an implicit "might" before the last word of that Citizenship Clause, whereas I think there is an implicit "do."
Accordingly, we have debated whether people born after passage of the Fourteenth Amendment are entitled to birthright citizenship in U.S. territories, or instead a statute or treaty is needed for that purpose.  Although not (yet) persuaded, I have learned a lot from the discussion, and from occasional related comments from David Upham and John Vlahoplus.  Just for the record, here's the core of the discussion between Mike and me:
Me on November 24, 2020:  "Citizenship and Almond Joys"
I’ll just add a couple quick things.  First, the interpretation that I've advocated dates a long way back.  For example, in 1899, Christopher C. Langdell argued that "United States" in the Citizenship Clause refers only to the states, because, "if they had contemplated Territories as well, they certainly would have said ‘citizens of the State or Territory in which they reside.'"  As I've pointed out, a proposal to do exactly that was rejected in 1867.
The only other thing that I’d like to mention now is that this discussion about territories is relevant to the well-known ongoing controversy about whether a person, born to parents who are anywhere in the country illegally, becomes entitled to birthright American citizenship.  It has long been understood that the words "state wherein they reside" in the Citizenship Clause refers to legal domicile rather than merely presence or property ownership, as Senator Jacob Howard implied in 1866 while correcting a typo: "The word 'State' in the eleventh line is printed 'States.' It should be in the singular instead of the plural number…." This domicile is a condition on both state and federal birthright citizenship, when the Citizenship Clause is read like this: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they [do] reside." 


Harold Anthony Lloyd: Recasting Canons of Interpretation and Construction into "Canonical" Queries
Michael Ramsey

Harold Anthony Lloyd (Wake Forest University School of Law) has posted Recasting Canons of Interpretation and Construction into "Canonical" Queries (66 pages) on SSRN.  Here is the abstract:

This Article advocates recasting the canons of construction into neutral queries rather than presumptions or directives of meaning. Such an approach would not only rectify problems with the canons discussed in this Article. It would also provide lawyers with highly useful "checklists" of semantic questions lawyers might otherwise overlook when interpreting and construing meaning in contexts of both private law (e.g., contracts) and public law (e.g., constitutional provisions and statutes).

As a part of such advocacy, this Article explores in detail the following "canonical" queries and sub-queries (and the canons of construction they replace where applicable): the applicable text query, the plain meaning query, the ambiguity sub-query, the vagueness sub-query, the indeterminacy sub-query, the ordinary meaning query, the technical and term of art query, the grammar query, the punctuation query, the further meaning query, and the irony/non-literal meaning query. This Article also includes a detailed Appendix outlining further needed queries to be addressed in future articles. These include the ejusdem generis query, the noscitur a sociis query, the expressio unius query, the antecedent/subsequent query (rejecting the rule of the last antecedent), the anaphora query, the whole text query, the surplusage query, the absurdity query, the exercise of power query (rejecting general construction against the drafter), and queries of meaning through time.

Additionally, to help direct proper application of the queries, this Article also explores the distinction between interpretation and construction.


Michael L. Smith: Originalism and the Inseparability of Decision Procedures from Interpretive Standards
Michael Ramsey

Michael L. Smith (Glaser Weil Fink Howard Avchen & Shapiro LLP) has posted Originalism and the Inseparability of Decision Procedures from Interpretive Standards (24 pages) on SSRN.  Here is the abstract: 

In his forthcoming article, Originalism: Standard and Procedure [Ed.: available here], Stephen Sachs describes an unending debate between advocates of originalism and their critics. Originalists argue that certain historic facts play a role in determining the meaning of constitutional provisions. Critics respond that making determinations about these facts is difficult, if not impossible for judges, attorneys, and the general public. Sachs seeks to rise above this debate, arguing that originalism should not be treated as a procedure for interpreting the constitution, but instead as a standard by which interpretations may be judged. Even if originalism does not set forth a set of rules for its implementation, it is still of use to the extent that it provides an account of what interpretations are correct or mistaken, and may point interpreters toward “rules of thumb” for interpreting the Constitution.

This Article takes issue with this approach. First, Sachs argues that treating originalism as a standard, rather than a procedure, effectively avoids critiques over difficulties of implementing originalism. But whether originalism can be implemented remains an important consideration when choosing between standards of interpretation. If a standard typically cannot be implemented that standard is less preferable to an alternate standard of interpretation that is easier to implement. Second, the move to a focus on standards further alienates discussions that are already technical and theoretical from the practical realities that judges, attorneys, and the general public face. Even if treating originalism as a standard avoids implementation critiques, theorizing about originalism at this level is even less useful for actors in the real world.

Originalism is not like other instances in law where statutes or opinions refer to other opinions, statutes, or third-party publications. Instead, originalism requires rigorous and complex analysis of historic facts to determine the original public meaning of constitutional provisions—an undertaking that most judges, attorneys, members of the public, and even legal academics may find challenging. Treating originalism as a standard does not avoid this concern—and even if it did, these issues should be confronted, rather than evaded.


Jeffrey Schmitt: Slavery and the History of Congress's Enumerated Powers
Michael Ramsey

Jeffrey M. Schmitt (University of Dayton - School of Law) has posted Slavery and the History of Congress's Enumerated Powers (Arkansas Law Review, forthcoming) (40 pages) on SSRN.  Here is the abstract:

Legal scholarship often ignores or minimizes slavery’s profound influence on the history of federal powers. In fact, a number of influential scholars contend that constitutional history supports an understanding of Congress’s enumerated powers that would leave no subject reserved to the states. This scholarship, however, is inconsistent with the history of the Founding, early Congress, and Marshall and Taney Courts. Before the Civil War, virtually all American elites agreed that Congress had no power to interfere with slavery in the states. Because slavery was fundamental to the national economy, this meant that the federal government had no power to regulate social or economic activity within the states, regardless of its connection to interstate commerce. The modern regulatory state is thus incompatible with how federal powers were understood before the Civil War, and legal scholars should stop pretending otherwise. Especially at this time of racial reckoning, legal scholarship should acknowledge slavery’s pervasive influence on constitutional history. Doing so will both undermine the moral legitimacy of originalism and emphasize the need for a living Constitution.